RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3031-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.S.1

Defendant-Appellant.

_______________________

Argued March 22, 2021 – Decided May 3, 2021

Before Judges Sabatino, Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No.15-10-1247. 

Margaret McLane, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Margaret McLane, of 

counsel and on the brief). 

Ian C. Kennedy, Assistant Prosecutor, argued the cause 

for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; Ian C. Kennedy, of counsel and 

1

 We use initials to protect the victim's privacy. R. 1:38-3(d)(12); see also

N.J.S.A. 2A:82-46. 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3031-18

on the brief; Catherine A. Foddai, Legal Assistant, on 

the brief). 

PER CURIAM

Tried by a jury in October 2018, defendant E.S. was found guilty of eight 

counts of sexual assault and other offenses he committed against his fiancé's

minor daughter, K.I. 

Specifically, defendant was convicted of first-degree aggravated sexual 

assault by an act of digital/penile sexual penetration upon K.I., a victim less than 

thirteen years of age, N.J.S.A. 2C:14-2a(1) (counts one and two); first-degree 

aggravated sexual assault by an act of sexual penetration (cunnilingus) upon a 

victim under thirteen, N.J.S.A. 2C:14-2a(1)(count three); second-degree 

attempted aggravated sexual assault by attempting to perform an act of sexual 

penetration (fellatio) upon a victim under thirteen, N.J.S.A. 2C:5-1 and N.J.S.A. 

2C:14-2a(1)(count four); second-degree sexual assault by an act of sexual 

contact (intentionally touching the victim's vagina) upon a victim under thirteen, 

N.J.S.A. 2C:14-2b(count six); second-degree sexual assault by an act of sexual

contact (intentionally touching the victim's breasts/buttocks) upon a victim 

under thirteen, N.J.S.A. 2C:14-2b (counts seven and eight); and second-degree 

endangering the welfare of a child by sexual conduct that would impair or 

debauch the child's morals. N.J.S.A. 2C:24-4a (count ten). 
3

A-3031-18

The trial judge sentenced defendant to concurrent fifty-year custodial 

terms, subject to an eighty-five-percent parole disqualifier pursuant to the No 

Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2 on counts one, two, and three. 

Count six was merged into count one. On the remaining counts, defendant was 

sentenced to concurrent eight-year custodial terms, subject to an eighty-fivepercent parole disqualifier under NERA. Defendant was sentenced to serve his 

terms on all counts concurrently. 

On appeal, defendant primarily argues the State wrongfully failed to 

disclose to his counsel until the middle of trial a report of a physician who 

examined K.I. two days after she had reported her allegations of sexual abuse to 

the police. Defendant contends the doctor's report contains relevant and, to 

some degree, exculpatory information. Although the report was not in the 

prosecutor's files, defendant argues it should have been obtained and supplied 

to his attorney by the State before trial, pursuant to Brady v. Maryland, 373 U.S. 

83 (1963), and also pursuant to the criminal discovery rules. 

When the existence of the report surfaced during his defense counsel's 

cross-examination of the victim, defendant moved for a mistrial, which the trial 

judge denied. Defendant claims he was unfairly prejudiced by these 

circumstances, and therefore should be granted a new trial.
4

A-3031-18

Additionally, defendant argues the trial court misapplied the "fresh 

complaint" doctrine by allowing the State to present hearsay statements of the 

child she made to a relative. 

Defendant lastly contends his sentence, which was enhanced to fifty years 

under the "Jessica Lunsford Act," L. 2014, c. 7. § 1, is illegal because the jury's 

verdict did not make sufficient findings to establish that his sexual offenses 

occurred after the Act's effective date of May 15, 2014.

For the reasons that follow, we affirm.

I.

Given their graphic nature, we summarize the State's proofs from the fiveday trial only to the extent necessary to provide context for the legal issues.

Events Leading up to the Abuse

The victim in this case, K.I., was born in July 2002. At the time of the 

charged events, occurring between August 1, 2013 and September 21, 2014, K.I. 

was under the age of thirteen.

In 2006 K.I.'s mother ("the mother") met defendant. Soon thereafter the 

couple, along with K.I., moved into an apartment in Bergen County. The couple 

was engaged but never married. At times, defendant was imprecisely referred 

to as K.I.'s stepfather.
5

A-3031-18

Before the acts of abuse, K.I. had come to think of defendant as a "father 

figure" because her own biological father ("the father") was not involved in her 

life. From a young age, K.I. called defendant "Daddy." Defendant helped K.I. 

with her homework, watched television with her, and supported her aspirations 

of joining the military.

Beginning in or around August 2013, when K.I. was only eleven years 

old, defendant and K.I.'s relationship changed. Approximately one year earlier, 

defendant, K.I. and the mother moved into a new apartment, just down the street 

from their previous dwelling. K.I. testified that a few months after moving into 

that apartment defendant began to abuse her sexually.

The family generally followed a routine schedule. The mother worked 

from around 8:00 a.m. until about 5:00 p.m. most days. In the morning she 

would drop off K.I. at her elementary school down the street from their 

apartment. At 3:15 p.m., when school ended, K.I. and her cousin would walk a 

few blocks to the house of her maternal grandmother ("the grandmother"), where 

she would wait until defendant picked her up and brought her home. Defendant 

and K.I. were typically alone at their residence until 6:00 p.m. when the mother 

returned from work. 

The Instances of Abuse and the Photographs
6

A-3031-18

According to K.I., over the course of the nearly year-long period of abuse, 

defendant sexually assaulted her more than an estimated thirty times. She 

testified in detail about a few of those specific instances.

The first such assault occurred when K.I. was eleven years old, in August 

2013. K.I. testified that, just after she had taken a shower, when mother was not 

home, defendant led her by the arm to the bed he shared with the mother. K.I. 

at the time was wearing just a towel. Defendant laid K.I. on her back, and 

without saying anything, penetrated her digitally. When he finished, he asked 

K.I. "if [she] liked it." She did not respond. 

Although K.I. did not provide a specific timeframe for when the next 

instance of abuse occurred, she testified that on that second occasion defendant

again sexually assaulted her when they were home alone. During this episode, 

K.I. was just "in [her] room, laying on [her] bed" and wearing shorts, when 

defendant came in, pushed her shorts to the side, and used his tongue to perform 

cunnilingus on her. He said nothing to her during the episode or after.

On a third occasion, which K.I. again did not pinpoint with a specific 

timeframe, defendant entered her room while she was laying in bed. Without 

saying anything, he penetrated her with his penis. Because of the pain, she cried. 

According to K.I., he stopped and "freaked out," pacing back and forth in the 
7

A-3031-18

room, asking if she wanted him to "leave." K.I. took this to mean that he would 

leave forever. She told him no because she "knew [her] mom would get mad 

. . . [i]f she found out" and defendant was still "like a father" to her. After this 

assault, K.I. noticed she was bleeding when she went to the bathroom.

K.I. recounted that defendant's sexual assaults of her by penile penetration 

occurred between one and ten times. She recalled that, during these assaults, 

defendant carried a white rag to wipe them both down with when he had finished.

On a fourth subsequent occasion, again on an unspecified date, defendant 

attempted to force K.I. to perform fellatio on him by pushing her head towards 

his genitals. However, she refused. 

The State's investigation also revealed incriminating photographs found 

on two electronic devices. First, on a tablet previously owned by K.I. and later 

given to a family friend, there were numerous photos of defendant and K.I. 

kissing on the lips, cheek, and touching tongues. The photos had been taken as 

early as December 25, 2013. Second, multiple photos of K.I. were on 

defendant's cell phone, which included salacious and inappropriate photos of her 

bare breasts with her face in the picture. Forensic experts testified for the State 

as to how these photos had been extracted from the deleted images stored on the 

respective devices.
8

A-3031-18

K.I. testified that she took the photos on defendant's phone in the hope 

that it would satiate him and stop him from further pursuing physical sexual 

abuse of her.

Allegations Against K.I.'s Biological Father

In an effort to impeach K.I.'s credibility, defense counsel focused at trial 

upon an allegation made by K.I. of sexual abuse by her biological father. 

Specifically, in 2013, when K.I. was twelve years old, defendant told her mother 

that K.I. had confided in him that K.I.'s biological father had inappropriately 

touched her while bathing her. The mother approached K.I. about this

allegation, and asked her if she had anything to tell her, and "Did he [(meaning

the father)] touch you?" K.I. did not verbally respond. Instead, "all she did"

was nod and cry. According to the mother, while this conversation was 

transpiring between her and K.I. alone in K.I.'s room, defendant was "[l]urking 

around in the kitchen and in the doorway."

At that time, no action was taken to file a criminal report against K.I.'s 

biological father. That was because he no longer had contact with K.I. and had 

not had contact with her since about the time that she was four years old, except 

for occasional visits for birthdays. However, in 2014, when law enforcement 

authorities became involved in investigating the allegations against defendant, 
9

A-3031-18

K.I. disclosed to a police detective that her biological father had also abused her. 

The matter was referred to authorities in Passaic County, a locale where the 

abuse could have occurred.2 

K.I. later recanted her statement against her biological father. According 

to K.I., she realized as she grew older that there was a "difference" between what

the father had done and what defendant had done. Defense counsel attempted 

to cross-examine her at trial about this. K.I. explained she had told defendant 

about the father's alleged abuse so that defendant would talk to her mother about 

it, somehow making it easier for her to then disclose the abuse that defendant 

was perpetrating against her. She did not, however, tell her mother about 

defendant's abuse. 

The Text Messages Between Defendant and K.I.

After nearly a year of being sexually abused by defendant, K.I. sought to 

cease the abuse and attain a semblance of normalcy. She began to refuse 

defendant's advances and push him away. She asked for their relationship to 

return to the way it was before he had begun abusing her.

2

 It is unclear from our record whether any criminal charges were ever brought 

against the father.
10 A-3031-18

Eventually, however, on September 20, 2014, defendant gave K.I. (who 

was at that point twelve years old) a "deadline" for him to engage in sexual 

conduct with her. This communication was preserved in the following text 

exchange,3 which occurred at about 11:00 p.m. that day, while the two were 

home alone: 

[Defendant:] Hey babe, lets F***

[K.I.:] I'm doing my nails. And delete that message. 

[Defendant:] I know you're doing your nails. I'm just 

asking can we F***

[K.I.:] Oh yeah. Delete these messages. 

[Defendant:] Forget it. I'm going to kill myself 

tomorrow night. 

[K.I.:] No daddy. Why, what did I do? I said yeah. 

[Defendant:] Forget it. 

This exchange led to an argument between K.I. and defendant a day or so later. 

K.I.'s Argument with Defendant and Her Revelation of His Abuse

3

 The text conversation was not presented to the jury in the form of an exhibit 

at trial but was elicited through K.I. refreshing her recollection by reading the 

exchange. It is presented here as a block quote for legibility. The State's 

forensic expert who analyzed defendant's phone confirmed the exchange 

occurred, and indicated the corresponding time and date stamps in his testimony.
11 A-3031-18

Around midday on Sunday, September 21, 2014, while the mother was at 

a softball game, K.I. and defendant began to argue about the so-called

"deadline." As their argument escalated, K.I. and defendant pushed each other. 

Defendant threatened to kill himself with a switchblade he had previously shown 

to K.I., which was still in his pocket. Despite that threat, K.I. still refused to 

allow defendant to engage in sexual conduct with her. She demanded that he 

drive her to grandmother's house down the street, fearing that he would commit 

suicide in front of her. He drove her there. As she got out of his vehicle,

defendant told K.I. that "he was dead to [her]."

Still crying as she entered grandmother's house, K.I. revealed that she and 

defendant just had an argument but did not yet disclose the abuse. The 

grandmother and K.I. decided to call the mother. During that call, K.I. told the 

mother that she and defendant had gotten into an argument and he pushed her, 

and that defendant further threatened to kill himself.

The mother testified that she then called defendant, who told her that the 

argument came about because K.I. "caught an attitude" and that he shoved her 

back as she tried to walk out the door. K.I. stayed that night at the grandmother's 

house. 

K.I.'s Fresh Complaint to Her Step-Grandmother
12 A-3031-18

The fresh complaint testimony at issue stems from a conversation between 

K.I. and another relative, her step-grandmother,

4

that occurred the following 

day, on September 22, 2014. During that conversation, K.I. revealed that 

defendant had been molesting her. 

The step-grandmother testified that she and K.I. shared a close 

relationship. The two of them would routinely exchange phone calls when K.I. 

finished school each day at around 3:15 p.m., and usually talked about how her 

day at school was.

The step-grandmother recounted that, on at least two previous occasions, 

defendant asked her to use the close relationship she had with K.I. to persuade 

K.I. to dress more "appropriately." He felt that her clothes were too revealing 

and tight. Although the step-grandmother herself had no criticism of K.I.'s 

clothing, she agreed to do so.

The step-grandmother also testified that at events and family functions 

"[i]t just always seemed that [defendant] was always . . . watching what [K.I.] 

was doing." Further, she noted that defendant complained K.I. was "taking him 

4

 The record indicates that the person identified as the step-grandmother is the 

wife or significant other of K.I.'s maternal grandfather.
13 A-3031-18

for granted, that she was an ingrate, that he did so much for her and she wasn't 

appreciative of him."

On the day of the relevant conversation, the step-grandmother had spoken 

to the mother about a Facebook post she had seen,5 which concerned her. This

reference to the Facebook post was objected to by defense counsel, and the

objection was sustained. In speaking with mother, the step-grandmother learned 

that defendant and K.I. had been in an argument that caused K.I. to stay at her 

grandmother's house overnight. 

That day, K.I. called the step-grandmother as she normally did after 

school. During the first portion of the conversation, the step-grandmother 

testified that they talked about how school went. Initially, K.I. seemed "happy" 

and fine. However, when the step-grandmother asked about the argument with 

defendant, K.I. became "a little bit more reserved, [and was] shocked that [the 

step-grandmother] brought it up."

The step-grandmother testified that K.I. talked about the argument. She 

told K.I. that she was going to ask her an awkward question, and proceeded to 

5

 At trial the reference to the Facebook post was objected to by defense counsel 

and sustained by the trial judge. The admissibility of that Facebook post had 

previously been taken into consideration during a motion hearing and held 

inadmissible.
14 A-3031-18

ask "if [defendant] ever touched her totito [(translated as 'vagina')]." K.I. fell 

silent. After a bit of time, the step-grandmother gave her assurances and 

reasserted her initial question. At that point, K.I. began to cry. The stepgrandmother then asked K.I. a yes-or-no question as to whether defendant had 

touched her breasts and other body parts, to which K.I. responded "yes." 

Upon hearing this, the step-grandmother fell silent. K.I. then said: "But, 

Mema, there's more." The step-grandmother then asked her if defendant had 

engaged in sexual intercourse with K.I., and she responded "yes." According to 

the step-grandmother, K.I. was scared to tell her mother about this, so she 

offered to help K.I. have the conversation.

The step-grandmother contacted the mother and told her that they needed 

to talk in person, although she did not disclose why. The mother responded that 

K.I. had a preplanned doctor's appointment that evening, but they would come 

over directly afterwards.

When the mother arrived home, both K.I. and defendant were present. The 

mother admonished them both for having an argument, not yet knowing what 

K.I. had told the step-grandmother. The mother then took K.I. to her 8:00 p.m. 

doctor's appointment, and then to the step-grandmother's residence.
15 A-3031-18

At the step-grandmother's house, K.I. could not bring herself to say her 

allegations of defendant's abuse out loud to her mother. Instead, K.I. whispered 

them into the step-grandmother's ear so she could relay them.

The maternal grandfather then took K.I. to the police station, while the 

mother and step-grandmother confronted defendant about K.I.'s allegations. 

While wielding a baseball bat, the mother asked him: "Are you f***ing my 

daughter?" After briefly confronting defendant, the mother stepped outside and 

step-grandmother asked defendant why K.I. had made such allegations. He 

responded that "he didn’t know . . . that he was always there for her" and that

only days before K.I. "had told him that he was a wonderful father. . . ."

The Report to The Police and K.I.'s Forensic Interview

After confronting defendant, the mother and step-grandmother headed to 

the local police station. They spoke with a police captain about the allegations. 

He in turn contacted Detective Brad Waudby of the Bergen County Prosecutor's 

Office, Special Victims Unit, to conduct a forensic interview of K.I. 

At trial Detective Waudby testified that, as noted in his report, his

interview of K.I. began at 1:40 a.m. A caseworker from the Division of Child 
16 A-3031-18

Protection and Permanency6appeared at the office with K.I., the mother, and the 

step-grandmother. The Division worker watched the interview from an adjacent 

room.

After interviewing K.I., Detective Waudby and other officers went to the 

family residence. The officers noticed that, although all of the lights were on, 

no one was answering, and defendant was not answering his cellular phone. 

They peered inside and saw defendant lying motionless on the bathroom floor. 

The officers forcibly entered, and provided lifesaving aid to defendant, who was 

surrounded by empty pill bottles, two knives and a pair of scissors. The officers 

then secured the home until a search warrant was obtained. They executed the 

warrant and collected the evidence, including defendant's phone, which was in 

the bathroom.

The Trial Witnesses

The State's witnesses at trial were K.I., her mother, her step-grandmother, 

Detective Waudby, and the forensic experts. Defendant did not take the stand 

in his own defense at trial. He called no witnesses.

6

 The record in this case and the pertinent case law refer to both the Division of 

Child Protection and Permanency ("DCPP") as well as its predecessor 

organization, the Division of Youth and Family Services ("DYFS"). 

Accordingly, this opinion refers to both of these organizations, collectively, as 

the "Division" for the purpose of continuity.
17 A-3031-18

In closing argument, defense counsel extensively questioned the 

credibility of K.I.'s accusations and her trial testimony. She argued that K.I.'s 

accusations were contrived, and that her narrative was replete with 

inconsistencies. Counsel argued that any sexual touching that had occurred was 

only by K.I.'s biological father, as K.I. had asserted to defendant. Counsel 

further argued that the photos and text messages, while seemingly alarming, 

were not conclusive proof beyond a reasonable doubt that defendant had actually 

engaged in any sexual conduct with K.I.

The Jury Verdict

Before charging the jury, the trial judge dismissed counts five and nine 

due to timing issues. As part of the charge, the judge instructed the jurors 

concerning the May 15, 2014 effective date of the Lunsford Act. Specifically,

the judge told the jurors that if they were to find defendant guilty of counts one, 

two, or three, then they had to answer a second query, as to those counts—i.e., 

"[D]id any act of sexual penetration occur after May 15, 2014?" The judge 

further instructed that counts four, six, seven, eight, and ten did not concern that 

secondary question of timing. 

During deliberations, the jury asked the court about the significance of the 

date of May 15, 2014. The court instructed the jury that it was "simply a 
18 A-3031-18

question of fact that must be decided by the jury. You must not speculate as to 

the reason or reasons you have been asked to make that determination . . . ." 

However, in giving this guidance to the jury, the court accidently stated May 15, 

"2015" rather than "2014." Nonetheless, the verdict form correctly used the 

2014 date.

The jury returned a verdict, finding defendant guilty of all of the nondismissed counts. The jury answered in the affirmative, both on the verdict sheet 

and in open court, that wrongful acts occurred "after May 15th, 2014" as to 

counts one, two, and three.

Several months later, the court imposed the fifty-year NERA sentence we 

previously noted in our introduction.

II.

Defendant raises the following points on appeal in his brief:

POINT I

THE TRIAL COURT ERRED IN DENYING THE 

DEFENSE MOTION FOR A MISTRIAL WHEN THE 

STATE DISCLOSED EXCULPATORY EVIDENCE 

IN THE MIDDLE OF TRIAL.

A. INTRODUCTION 

B. THE FAILURE TO DISCLOSE 

EXCULPATORY EVIDENCE IS A BRADY

VIOLATION. 
19 A-3031-18

1. THE REPORT IS EXCULPATORY.

2. THE PROSECUTOR HAD 

CONSTRUCTIVE KNOWLEDGE 

OF THE EXISTENCE OF THE 

REPORT.

3. THE WITHHELD EVIDENCE IS 

MATERIAL.

C. THE FAILURE TO DISCLOSE THE 

REPORT VIOLATED OUR DISCOVERY 

RULES.

D. THE STATE’S FAILURE TO DISCLOSE 

THE REPORT DEPRIVED [DEFENDANT] OF 

HIS RIGHT TO A FAIR TRIAL. A MISTRIAL 

WAS THE ONLY APPROPRIATE REMEDY.

POINT II

THE IMPROPER ADMISSION OF FRESH 

COMPLAINT TESTIMONY, HEARSAY, AND 

OPINIONS ON THE ULTIMATE ISSUE AND K.I.’S 

CREDIBILITY REQUIRE REVERSAL OF 

DEFENDANT’S CONVICTIONS. 

A. THE FRESH COMPLAINT TESTIMONY 

WAS INADMISSIBLE BECAUSE THE 

DISCLOSURES WERE NOT SPONTANEOUS.

B. INADMISSIBLE ADDITIONAL 

HEARSAY STATEMENTS IMPROPERLY 

BOLSTERED K.I.’S ACCOUNT.
20 A-3031-18

C. OPINION TESTIMONY ABOUT THE 

ULTIMATE ISSUE AND K.I.’S CREDIBILITY 

WAS INADMISSIBLE.

D. THESE ERRORS WERE HIGHLY 

PREJUDICIAL AND REQUIRE REVERSAL.

POINT III

THE JURY INSTRUCTIONS AND VERDICT SHEET 

FAILED TO ENSURE THAT THE CONDUCT IN 

EACH OF THE AGGRAVATED SEXUAL ASSAULT 

CHARGES OCCURRED AFTER THE EFFECTIVE 

DATE OF THE JESSICA LUNSFORD ACT. THE 

SENTENCES ON THESE COUNTS MUST BE 

VACATED AND REMANDED FOR 

RESENTENCING IN THE ORDINARY FIRSTDEGREE RANGE. 

We address these arguments, none of which require reversal, in turn.

A.

The primary issue in this appeal concerns the prosecution's non-disclosure 

of a report prepared by a physician at the Audrey Hepburn Children's House 

medical facility ("AHCH"), who examined K.I. within two days after she

reported her allegations of sexual abuse to the police. The existence of this 

medical report apparently did not become clear until during defense counsel's 

mid-trial cross examination of K.I., in which counsel asked her about a text 

message she had sent to her grandmother on September 24, 2014. 
21 A-3031-18

The text message was duly supplied by the prosecution to defense counsel 

during pretrial discovery, after it was uncovered in the forensic review of the 

contents of K.I.'s cell phone. In pertinent part, the text message read: "[S]he

told me that I am a verjin [sic][(virgin)]." Evidently, the text message itself7

does not explicitly identify the "she" in this sentence, although the context 

indicates that K.I. was referring to a female physician who had recently 

examined her.

The question posed to K.I. by defense counsel was: 

Isn't it true that after you gave a statement to Detective 

Brad Waudby saying you engaged in sexual intercourse 

with a grown man on more than one occasion that you 

text messaged with your grandmother that a medical 

exam had found you to be a virgin? 

[(Emphasis added).]

After a prompt objection by the State, a sidebar was held, and the jury was asked 

to exit the courtroom. During the sidebar, K.I. testified that she went to "that 

doctor thing" and "they checked like inside of me I guess and she had told me 

just because all of this happened I'm still a virgin, so that’s what I went by."

7 Our record does not contain a screenshot or printout of the text message, so 

we abide by the contents quoted from it in the transcripts and appendices.
22 A-3031-18

Having been provided with this additional background, the trial judge 

sustained the State's objection to the query of K.I. on hearsay grounds. The 

judge noted that defense counsel was "asking her to repeat what the doctor said 

for the truth of the matter asserted that she's a virgin. . . . And you're arguing 

that physiologically she was a virgin . . . ." Further, the judge observed, "it's not 

at all clear exactly what it is that the doctor was telling her"— i.e., whether she 

was "physically" still a virgin or, alternatively, that she was still a virgin because 

the conduct was "non-consensual." Accordingly, the objection was sustained, 

whereupon defense counsel preserved the right to call the physician as a rebuttal 

witness.

The defense resumed questioning of K.I. then revealed that K.I. had a 

doctor's appointment at AHCH on September 24, 2014. No other details about 

the appointment were divulged at that point. Defense counsel then sought an 

order from the court to obtain the records from the AHCH medical facility.

Later that day at trial, Detective Waudby testified on cross examination 

that, although he did not recall authorizing or requiring K.I. to be sent to the

AHCH, he was aware that she had gone to the facility. Given the detective's 

knowledge of the medical appointment, defense counsel argued it was likely to 

have been part of the State's investigation.
23 A-3031-18

The AHCH Medical Report

On October 4, 2018, the assistant prosecutor produced a copy of the 

AHCH medical report to defense counsel and the court during a break in the 

proceedings. The prosecutor apparently obtained the report from an unidentified 

billing analyst.8

The report, entitled "Medical Evaluation," was dated September 24, 2014. 

It consisted of six typewritten pages. The report was authored by Paulett Diah, 

M.D., FAAP, a child abuse pediatrician with AHCH. The report noted that it 

was based on an examination of K.I. that took place on that same date of 

September 24.

At its outset, the report stated that K.I. was a twelve-year-old female who 

came to the AHCH "for an evaluation of possible sexual abuse." The report said

K.I. had been "referred by the Bergen County local office of the [Division] 

caseworker." The report further indicated K.I. had been accompanied to AHCH 

by the caseworker, K.I.'s mother, and her maternal grandmother. In addition to 

the physical examination of K.I., additional information in the report had been

8

 Although a copy of the report was not provided in the appendices on appeal, 

counsel supplied a sealed copy of it to us at our request before oral argument. 
24 A-3031-18

provided by the Division, separate interviews of the mother and grandmother, 

and a medical history taken from K.I.

By way of background, the AHCH report stated that "the concern for 

abuse arose when [K.I.] disclosed sexual contact involving her biological 

mother's fiancé . . . ." The report noted that the local police department, the 

Division, and the County Prosecutor's Office had all been contacted about the 

child's allegations.

The report further indicated that K.I. had been interviewed by the County 

Prosecutor's Office. During that interview, K.I. reported that, on multiple 

occasions, her mother's fiancé had engaged in "digital/vaginal penetration, 

penile/vaginal penetration, and oral/vaginal contact" with her. In addition, the 

report noted K.I. had alleged her biological father had "touched her breast and 

vagina over her clothing," years earlier when she was about six or seven years 

old.

The report stated the doctor had "explained to [K.I.] the reason for her 

examination was for diagnosis and treatment purposes; to ensure that her body 

was healthy and clean." During the doctor's interview of K.I., she repeated her 

allegation that her mother's fiancé had touched her vagina with his penis and his 

mouth, and that sometimes he would penetrate her.
25 A-3031-18

The report included a detailed description of a genitourinary and anal 

examination of K.I. Among other things, it noted that K.I. was "unable to 

tolerate the use of a speculum." No hematomas, scars, lesions, lacerations, 

bruises, rashes, hypopigmentation, erythema, or ecchymoses were apparent. 

On the whole, the report described the findings repeatedly as "a normal 

examination." It expressly concluded that "[t]he result of this examination 

neither confirms nor denies the possibility of sexual abuse."

In explaining why vaginal penetration could not be physically confirmed

or ruled out, the report noted that K.I. was pubertal at the time. It elaborated 

that, at puberty, "estrogen effects on the genital tissues (which includes the 

hymen) result in tissue that is thickened, lubricated and elastic. These 

characteristics reduce the likelihood of injury from penetrating trauma." Hence, 

"a normal examination is not unusual in this setting." The report added that 

"superficial injury such as bruises or abrasions to the genitalia could have 

occurred at the time of the contact that may have now healed without residua."

The report recommended, among other things, that the DCPP should 

ensure that K.I. is "in a safe and nurturing environment," that K.I. should be 

"referred for a psychosocial evaluation to assess any emotional trauma" she may 

have experienced, that lab tests should be monitored for any abnormal results, 
26 A-3031-18

and that K.I. should have no contact with the fiancé or with her biological father 

"until the authorities have completed their investigation."

Notably, the report contains no indication that it was transmitted 

contemporaneously to the Prosecutor's Office. In this regard, the assistant 

prosecutor represented to the trial judge on the record, as an officer of the court, 

that "the State was not aware [of the report] until it came out . . . during the trial 

that [K.I.] had gone to the [AHCH]." Consistent with that representation, and 

the absence of any other evidence showing otherwise, the judge made a factual 

finding that neither the State nor defense counsel was aware of the September 

24 medical evaluation at AHCH until "everybody learned about it for the first 

time during cross-examination of the victim."

Arguments Concerning the Report's Non-Disclosure

After an in camera review of the report, and upon motion of defense 

counsel, the trial judge provided defense counsel with a short recess to research

legal arguments concerning the report's non-disclosure, and to subpoena the 

doctor for appearance at trial in the upcoming week.

Several days later, defense counsel filed a letter brief with the court 

addressing issues implicated by the recent turnover of the AHCH medical report. 

The brief stressed the report found that K.I. "had an annular, or intact, hymen," 
27 A-3031-18

and also had revealed that she "was unable to tolerate use of the speculum during 

the exam." Defense counsel argued that these and other specific observations 

within the report were exculpatory and directly contradicted K.I.'s allegations of 

multiple instances of full vaginal intercourse with defendant.

Defense counsel also advised the judge she had served a subpoena for Dr. 

Diah, but learned that the doctor was out of the country and could not testify 

before October 15. Defense counsel accordingly requested a continuance, which 

the court granted. 

Defendant's Mistrial Motion

Thereafter, on October 15, defense counsel moved for a mistrial based 

upon learning that Dr. Diah had a new reason for being unavailable to testify, 

laryngitis. Defense counsel further contended the State's failure to produce the 

medical report in discovery was a Brady violation, and that AHCH should be

regarded, for purposes of Brady and discovery obligations, as an agent of the 

Prosecutor's Office. The prosecutor vigorously opposed these contentions.

The judge denied the motion for mistrial. He determined, as we noted 

before, that neither party had been aware of the existence of the medical report, 

and both learned about it for the first time as a result of the cross-examination 

of K.I. at trial. The judge also reasoned that, consistent with N.J.S.A. 9:6-8.10a
28 A-3031-18

and State v. Cusick, 219 N.J. Super. 452 (App. Div. 1987), the Division is not 

an agent of the Prosecutor's Office. 

The judge faulted defense counsel for not herself taking the initiative 

before trial to pursue whether a medical examination of K.I. had been conducted 

and, if so, to take steps to obtain any report of that examination. The judge 

specifically found that the "failure to explore this issue and obtain the records at 

issue fall[s] squarely at the feet of the defense." In this regard, the judge noted 

the defense had received in discovery K.I.'s text message stating she had been 

found to be a "verjin," as well as Detective Waudby's report that "clearly stated"

that a Division caseworker was present at the forensic interview. Accordingly, 

the judge ruled there was a sufficient basis to require defense counsel to have 

explored the issue or filed a motion to obtain the medical records. 

The judge amplified this ruling by observing that he believed "the defense 

made a strategic decision as a matter of trial tactics to wait until crossexamination to surprise the witness and the State with this text message." "It 

was plain that the [referenced] doctor's visit related to the allegations of sex 

abuse . . . but the defense chose not to explore that, instead, saving it for trial. 

Either way, the failure to obtain these records previously is the fault of the 

defense exclusively."
29 A-3031-18

The judge further noted that a one-week continuance already had been 

granted to enable Dr. Diah to testify, but "unfortunately . . . she's too ill to come 

to court." The judge declined to postpone the trial any further.

In addition, the judge ruled the medical report was inadmissible, and not 

exculpatory "in the way that defense believes it to be." Paraphrasing the report, 

the judge stated:

[N]otes based on the victim's age and her sexual 

maturity at the time of the alleged incident that the 

normal examination in this case is not unusual - - in a 

case like this is not unusual, that there could have been

superficial injuries such as bruises or abrasions to the 

genitalia that could have occurred at the time of the 

contact and may now have healed without residua, 

which, again, that could go exactly to the point of 

bleeding, even though the hymen was intact and the 

doctor says, again, a normal examination was noted in 

this case. The result of this examination neither 

confirms nor denies the possibility of sexual abuse.

[(Emphasis added).] 

Given the report's inconclusive content, the judge found that admitting it

as a defense exhibit would be more prejudicial than probative because doing so 

implied "the doctor was telling [K.I.] that her allegations of sexual penetration 

were not true and that would have been wrong because that's absolutely not what 

the doctor concludes."
30 A-3031-18

As a consequence of these rulings, the AHCH report was not admitted into 

evidence, and defense counsel was not permitted to delve into it further in her 

examination of K.I. or the other witnesses.

Arguments on Appeal Concerning the Report

On appeal, defendant contends the trial court erred in several ways 

concerning this issue. As a starting premise, defendant argues the Prosecutor's 

Office and the Division are both part of the State, and that in this context the 

Division functioned as an agent of the State when it referred K.I. for a medical 

examination at AHCH and accompanied her there. Defendant further maintains 

that even if the Prosecutor's Office did not possess a copy of the report within 

its files, it constructively possessed or should have known about the report 

through the Division. Turning to the content of the report, defendant contends 

it included relevant information that the State must turn over in discovery 

pursuant to Rule 3:13-3(b), and, moreover, that at least portions of it contained 

exculpatory information the State must constitutionally divulge under the Brady

doctrine. Defendant further argues the trial court erred in imposing the 

obligation upon defense counsel, rather than upon the prosecution, to have 

obtained the report. Because of these prejudicial errors, defendant argues the 

court should have granted his mistrial motion.
31 A-3031-18

Analysis Under Brady and the Discovery Rules

Several legal principles guide our assessment of these issues. For starters, 

we recognize, as did the trial court, that our reciprocity-based criminal rules of 

discovery require prosecutors to provide defense counsel before trial with 

material or information in their possession that is relevant to the case. See R.

3:13-3(b). Such discovery includes material that affects the credibility of a 

State's witness, such as K.I. here, whose testimony "may be determinative of 

guilt or innocence." State v. Hernandez, 225 N.J. 451, 462-63 (2016). 

Additionally, the discovery rules also require the State to provide the results or 

reports of physical or mental examinations "which are within the possession, 

custody or control of the prosecutor." R. 3:13-3(b)(1)(C).

The basic precepts of the Brady doctrine are likewise well established. A 

criminal defendant "has a constitutionally protected privilege to request and 

obtain from the prosecution evidence that is either material to the guilt of the 

defendant or relevant to the punishment to be imposed." State v. Hollander, 201 

N.J. Super. 453, 478 (App. Div. 1985) (citing Brady, 373 U.S. at 87). "In order 

to establish a Brady violation, the defendant must show that: (1) the prosecution 

suppressed evidence; (2) the evidence is favorable to the defense; and (3) the 

evidence is material." State v. Martini, 160 N.J. 248, 268-69 (1999) (citing 
32 A-3031-18

Moore v. Illinois, 408 U.S. 786, 794-95 (1972)); see also State v. Brown, 236 

N.J. 497, 519 (2019). 

For the purposes of our analysis, we shall assume, without deciding, that 

the AHCH medical report contains material information. We also will assume, 

without deciding, that portions of the report, despite its inconclusive ending, 

could have been favorable to the defense in impeaching K.I.'s narrative. 

The critical flaw in defendant's argument concerns Brady prong one: that 

the prosecution suppressed evidence it possessed or should have possessed. 

Defendant essentially treats the Prosecutor's Office and the Division as a 

monolithic single entity. This overly simplistic characterization of the discrete 

functions of those different governmental agencies is contrary to the law and 

was rightfully rejected by the trial judge.

We recognize that under Brady principles, the prosecution is generally 

obligated to produce any evidence which it possesses, controls, or is

constructively aware. State v. Nelson, 155 N.J. 487, 498 (1998). A County 

Prosecutor is deemed to be constructively aware of evidence possessed or known 

within the Prosecutor's Office as a whole, because it acts as one entity. Id. at 

499 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Beyond that, an 

"individual prosecutor has a duty to learn any favorable evidence known to 
33 A-3031-18

others acting on the government's behalf in the case, including the police." 

Kyles v. Whitley, 514 U.S. 419, 437 (1995) (emphasis added); see Nelson, 155 

N.J. at 498 (adopting the reasoning of Kyles). Conversely, a prosecutor does 

not have an obligation to aid defense counsel in obtaining information contained 

in the public record that counsel may obtain through their own diligence. State 

v. Orlando, 269 N.J. Super. 116, 134 (App. Div. 1993) (citing State v. Engel, 

249 N.J. Super. 336, 389 (App. Div. 1991)). Defense counsel "has a duty to 

make reasonable investigations or to make a reasonable decision that makes 

particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004) 

(quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)). 

The relevant statute concerning access to confidential Division records, 

N.J.S.A. 9:6-8.10a, states in relevant part: 

a. All records of child abuse reports made pursuant to 

section 3 of P.L.1971, c. 437 (C.9:6-8.10), all 

information obtained by the Department of Children 

and Families in investigating such reports including 

reports received pursuant to section 20 of P.L.1974, c.

119 (C.9:6-8.40), and all reports of findings forwarded 

to the child abuse registry pursuant to section 4 of 

P.L.1971, c. 437 (C.9:6-8.11) shall be kept confidential 

and may be disclosed only under the circumstances 

expressly authorized under subsections b., c., d., e., f., 

and g. herein. The department shall disclose 

information only as authorized under subsections b., c., 

d., e., f., and g. of this section that is relevant to the 

purpose for which the information is required, 
34 A-3031-18

provided, however, that nothing may be disclosed 

which would likely endanger the life, safety, or 

physical or emotional well-being of a child or the life 

or safety of any other person or which may compromise 

the integrity of a department investigation or a civil or 

criminal investigation or judicial proceeding. If the 

department denies access to specific information on this 

basis, the requesting entity may seek disclosure through 

the Chancery Division of the Superior Court. This 

section shall not be construed to prohibit disclosure 

pursuant to paragraphs (2) and (7) of subsection b. of 

this section.

Nothing in P.L.1977, c. 102 (C.9:6-8.10a et seq.) shall 

be construed to permit the disclosure of any 

information deemed confidential by federal or State 

law.

b. The department may and upon written request, shall 

release the records and reports referred to in subsection

a., or parts thereof, consistent with the provisions of 

P.L.1997, c. 175 (C.9:6-8.83 et al.) to:

(1) A public or private child protective agency 

authorized to investigate a report of child abuse or 

neglect;

(2) A police or other law enforcement agency 

investigating a report of child abuse or neglect; . . . 

[Id. (emphasis added).]

If the Division denies access, a court order must be sought by the entity seeking 

its disclosure.
35 A-3031-18

In discussing the relationship between the Division and law enforcement, 

the Supreme Court in State v. Buda, 195 N.J. 278 (2008), determined that the 

Division does not become an extension of law enforcement simply because it

was acting pursuant to its reporting requirements as detailed in N.J.S.A. 9:6-

8.36(a). Id. at 306-08. 

In Buda, Division caseworkers were called in response to a boy who was 

brought to a hospital emergency room exhibiting signs of abuse. Id. at 286. 

After finding him severely beaten, the mother of a four-year-old boy rushed him 

to the emergency room, and with his grandparents present, a Division 

caseworker interviewed the boy as he sobbed. Id. at 296-97. During the 

interview, the boy made a statement to the caseworker that implied the defendant 

had beaten him. At trial, the defendant argued the boy's statement was 

inadmissible as testimonial hearsay, and thus barred under Crawford v. 

Washington, 541 U.S. 36 (2004). 

The Supreme Court majority in Buda ruled the boy's statement to the 

Division caseworker was nontestimonial. 195 N.J. at 306. In doing so, the Court 

explained that that the reporting requirement of N.J.S.A. 9:6-8.36(a) (requiring 

Division caseworkers to immediately report suspected child abuse or neglect to 

the county prosecutor), was not on its own sufficient to convert a Division 
36 A-3031-18

caseworker from a civil agency employee to an extension of law enforcement. 

Id. at 306-07. 

Citing its earlier opinion in State v. P.Z., 152 N.J. 86, 96-99 (1997), the 

Court in Buda explained that the Division's stated mission under its statute is to 

protect and "immediately" safeguard the rights and welfare of children who are 

in danger of injury or possible death, rather than enforce the criminal laws. 195 

N.J. at 306. The Court explicitly rejected the notion that just because the 

Division, a civil agency, and a County Prosecutor, a law enforcement agency, at 

times are both investigating or taking actions against a person, they must be 

considered institutional extensions of one other. The Court explained its 

"inquiry is informed by the explicit recognition that a [Division] worker acting 

in a proper civil role does not trigger considerations that are unique to criminal 

trials, including the Confrontation Clause." Id. at 307 (emphasis added). 

The Court did recognize in Buda that exceptions may exist where a law 

enforcement agency has collaborated with a caseworker to orchestrate a civil 

interview as a means to gather incriminating evidence for a future prosecution. 

Id. at 307-08. No such collaboration or use of a case worker as a prosecutor's 

agent was discerned by the Court majority in Buda. 
37 A-3031-18

Although the dissenting justices in Buda disagreed with the majority's 

assessment of the situation, the dissent nonetheless recited a high bar for when 

such collaboration is so extreme as to justify treating a caseworker as an agent 

of a prosecutor. Specifically, the dissent found such coalescence exists where 

the functions of the Division and the prosecutor become "inextricably 

intertwined." Id. at 318 (Albin, J., dissenting). The circumstances in the present 

case fall short of that mark.

In its earlier opinion in a Fifth Amendment context in P.Z. the Court held 

that the setting in which a defendant gave incriminating statements to a Division 

caseworker about acts of child abuse did not amount to a law enforcement officer 

conducting a custodial interrogation, and thus trigger defendant's rights to a 

Miranda9 warning. 152 N.J. at 106. In holding in P.Z. that Division caseworkers 

generally are not required to give people they interview Miranda warnings, the 

Court observed that: "The criminal justice system acts separately, but in tandem 

with the civil system, to investigate and prosecute those who abuse and neglect 

children." Id. at 100. 

Focusing away from these Supreme Court decisions in Buda and P.Z., 

defendant relies upon this court's earlier opinion in State v. Helewa, 223 N.J. 

9

 Miranda v. Arizona, 384 U.S. 436 (1966). 
38 A-3031-18

Super. 40 (App. Div. 1988). On the facts in Helewa, we ruled that the particular 

close working relationship between the Division and the County Prosecutor's 

Office in that case made the Division caseworker functionally a law enforcement 

officer when she conducted a custodial interview of the defendant after he had 

been arrested on allegations of sexual assault of his two minor daughters. 223 

N.J. Super. at 42-45. We held that, under the circumstances there, the 

caseworker was acting as an extension of the government. 

The trial judge in the present case was guided in part by Cusick, 219 N.J. 

Super. 452, in determining the burden was upon defense counsel, not the 

prosecutor, to seek out and move to obtain the AHCH medical report, based 

upon the available evidence. In Cusick, the defendant sought reversal of his 

convictions of various sexual assault offenses against a child. On appeal, he 

argued in part that his constitutional right to confront witnesses against him was 

violated when the Division denied him access to certain records. Id. at 455-56. 

There, defense counsel had subpoenaed records concerning the victim's 

allegations from both the Division and a children's treatment center. A Deputy 

Attorney General representing both the Division and the center appeared before 

the trial court and explained that the subpoena could not be complied with 

because turning over the records was prohibited by statute. Id. at 456.
39 A-3031-18

Citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987), we observed in Cusick

that a criminal defendant's "right to discover exculpatory evidence does not 

include the unsupervised authority to search through the Commonwealth's files." 

219 N.J. Super. at 462-63. Instead, the Division's confidentiality provisions in 

Title 9 require judicial review and a court order authorizing release when the

Division declines to reveal the confidential records. In Cusick, the trial court 

reviewed the Division file materials in camera, and identified no pertinent 

impeachment material that could have been used by the defendant. Cusick, 219 

N.J. Super. at 463.

Here, there is no sound basis in the record to treat the Division, let alone 

the AHCH or Dr. Diah, as an "agent" of the County Prosecutor's Office with 

respect to the pediatrician's medical examination of K.I. The examination was 

arranged by the Division, not by the Prosecutor's Office or the police. K.I. and 

her family members were accompanied to AHCH by the caseworker, without 

being joined by a police officer or an employee of the Prosecutor's Office. 

There is no indication in the report that the doctor's examination was 

influenced or guided by the prosecutor, or that she performed her role on the 

prosecutor's "behalf." Kyles, 514 U.S. at 437. The doctor's clinical findings are 
40 A-3031-18

described in medical terminology typical of the profession rather than the 

language of criminal codes or police reports. 

There also is no indication in the record that the medical report was 

supplied to the Prosecutor's Office. The trial judge made a finding of fact that 

the Prosecutor did not learn of the report until the midst of defense counsel's 

cross examination of K.I., and we owe that finding deference on appeal. State 

v. Locurto, 157 N.J. 463, 471-72 (1999). 

We concur with the trial judge that defense counsel had a fair opportunity 

to seek the results of the evaluation herself. The State appropriately and timely 

supplied the defense in discovery in 2015 with K.I.'s text message about being 

deemed a "verjin," and did not conceal that potential lead. Yet, perhaps for 

tactical reasons, defense counsel apparently elected to not pursue the subject 

until the cross-examination of K.I. in 2016. We do not opine here about whether 

that was a reasonable tactical decision, as we do not know from the record what 

were counsel's strategic thought processes. In any event, there was not a failure 

on the prosecutor's part to honor its obligations under Brady or the discovery 

rules. 

Given the circumstances, the trial judge did not misapply his discretion or 

the applicable law in ruling that the hearsay medical report, which is replete with 
41 A-3031-18

complex expert opinions, was inadmissible. See N.J.R.E. 802 and 808; James 

v. Ruiz, 440 N.J. Super. 45, 64 (App. Div. 2015). The judge afforded the defense 

a reasonable interval for a continuance to attempt to have the doctor appear and 

testify. Unfortunately, the doctor was not available, perhaps in part due to the 

short notice that could have been avoided by sooner efforts to identify her role 

as an examiner and secure her testimony. The judge appropriately declined to 

allow the jurors to speculate about the results of the medical examination or to 

absorb the doctor's written hearsay opinions without explanatory testimony. All 

in all, the judge acted fairly and did not abuse his discretion in denying the 

mistrial application. State v. Winter, 96 N.J. 640, 646-47 (1984).

In reaching these conclusions, we express no opinions about whether it 

would have been preferable for the Prosecutor's Office to have initiated some 

inquiry on its own whether K.I. was taken by the Division to the AHCH for a 

medical examination and, if so, to find out the results of that examination. 

Perhaps in this case the Prosecutor's Office determined it had plenty of 

incriminating evidence (including the photos and text messages) so that it was 

not vital to pursue medical corroboration, or that, based on prior experience, 

such examinations at the AHCH are frequently, as here, inconclusive. We do 
42 A-3031-18

not have enough information to form a judgment about what may have been the 

actual reasons. 

In any event, the record, as it was developed here, is more than sufficient 

to support the trial judge's assessment that the prosecution did not violate its 

disclosure obligations under Brady or the discovery rules. Defendant has not 

proven error that would have had a clear capacity to change the verdict. R. 2:10-

1.

B.

We briefly turn to defendant's contention that the trial court erred in 

admitting evidence of K.I.'s out-of-court revelations of abuse to her stepgrandmother under the "fresh complaint" doctrine. The fresh complaint 

admissibility analysis was conducted in pretrial proceedings under N.J.R.E. 104 

by a different judge than the one who later presided over the trial. We 

substantially agree with and adopt that first judge's analysis. 

We reject defendant's argument that the fresh complaint doctrine 

disallows such evidence where the victim has made the complaints of 

wrongdoing in response to yes/no questions by the confidante. Although we 

expressed concerns about the potentially leading nature of such queries in State 

v. J.S., 222 N.J. Super. 247, 253-54 (App. Div. 1988), the Supreme Court 
43 A-3031-18

thereafter in State v. Bethune, 121 N.J. 137, 145-48 (1990), adopted a less 

categorical and more flexible approach. In Bethune, the Court reposed in the 

trial court's substantial discretion to ascertain from the circumstances whether 

the communication between the child and the confidante was unduly coercive or 

suggestive. Ibid.

Here, the step-grandmother's manner of discussing this difficult and 

emotional topic with K.I., particularly after hearing that defendant had told the 

child he wanted to kill himself, was not excessively suggestive or graphic. The 

child herself testified at trial, in much greater and more graphic detail, about the 

sexual acts. Given that detailed testimony, any claimed error in the admission 

of her out-of-court fresh complaint accounts was harmless. State v. Frost, 242 

N.J. Super. 601, 618 (App. Div. 1990). Moreover, the court issued appropriate 

instructions to the jury about the limited probative use of fresh complaint 

evidence. We discern no reversible error.

As a somewhat related argument, defendant contends that K.I., Detective 

Waudby, and several of K.I.'s relatives improperly conveyed various out-ofcourt statements during the course of their testimony. We are unpersuaded these 

assorted claims of hearsay violations require a new trial. Several of the 

statements encompass defendant's own out-of-court assertions, which are 
44 A-3031-18

plainly admissible under the hearsay exception for statements by a partyopponent, N.J.R.E. 803(b)(1). Other statements did not violate the hearsay rule 

to the extent they were non-assertive. See N.J.R.E. 801(c); State v. Long, 173 

N.J. 138, 152 (2002). The remaining passages of hearsay singled out by 

defendant on appeal do not appear to be clearly capable of producing an unjust 

result. R. 2:10-2 (plain error).

We likewise are unimpressed by defendant's contention that testimony 

from K.I's mother, step-grandmother, and Detective Waudby intolerably 

transgressed the lay opinion boundaries of N.J.R.E. 701. To the extent that 

defendant failed to object to some of those statements, we discern no plain error 

in their admission. State v. Macon, 57 N.J. 325, 335-36 (1971); see State v. 

Prall, 231 N.J. 567, 581 (2018) (citing Macon). In the instances where such an 

objection was interposed, the opinions either appear to have had an appropriate 

foundation under Rule 701, or, if not, were not so prejudicial in nature to eclipse 

the abundant other proofs of defendant's guilt.

C.

Finally, little needs to be said about defendant's claim that the jury's 

announced verdict and the verdict form did not sufficiently establish that he was 

guilty of committing one or more of the charged acts on counts one, two, and 
45 A-3031-18

three after the May 15, 2014 effective date of the Jessica Lunsford Act, N.J.S.A. 

2C:14-2. The jurors were specifically instructed by the court about the need for 

the State to prove such offenses after that date, and the verdict form (which 

defense counsel approved) adequately delineated the time frame. The jurors 

were polled on the date question, and unanimously confirmed their 

determination. We reject defendant's entirely theoretical speculation that, 

despite these measures, some jurors might have found that defendant's acts of 

penetration all preceded May 15, 2014. The verdict was sound, and the court's 

imposition of the enhanced mandatory minimum sentence called for by the 

Jessica Lunsford statute unassailable.

To the extent we have not commented about them, all other points raised 

on appeal lack sufficient merit to be worthy of discussion. R. 2:11-3(e)(2).

Affirmed.