RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4208-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

H.H.,

Defendant-Appellant.

___________________________

Submitted October 2, 2018 – Decided

Before Judges Suter and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 16-04-1062.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Laura B. Lasota, Assistant Deputy Public 

Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Kevin J. Hein, Assistant 

Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

October 24, 2018
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Following a jury trial, defendant H.H.1 was found guilty of third-degree 

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and three counts of 

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),

committed against M.W. when she was between the ages of thirteen and sixteen. 

On April 7, 2017, defendant was sentenced on count one to four years of 

imprisonment, on count two to a six-year term, on counts three and four to 

concurrent five-year terms, all to run concurrently with count one, for an 

aggregate six-year term. In addition, defendant was ordered to register as a sex 

offender under Megan's law; parole supervision for life; and a sex offender 

restraining order was issued pursuant to Nicole's law. Also, mandatory 

assessments, penalties, and a Sex Crime Victim Treatment Fund Penalty of 

$2,000 were imposed.

On appeal, defendant presents the following arguments:

POINT I:

THE TRIAL COURT ERRED IN ADMITTING 

FRESH[-]COMPLAINT TESTIMONY FROM TWO 

WITNESSES BECAUSE THE COMPLAINT BY 

M.W. WAS NOT TIMELY MADE TO THOSE 

WITNESSES, AND BECAUSE THE EVIDENCE 

ADMITTED ABOUT THE COMPLAINT WAS 

CUMULATIVE. (Not Raised Below)

 

1

 We use initials to protect the privacy of the victim, who is related by marriage 

to defendant.
3

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POINT II:

THE COURT FAILED TO CHARGE THE JURY IN 

RELATION TO DEFENDANT'S STATEMENT TO 

POLICE AND THE REMAINDER OF THE CHARGE 

THAT WAS GIVEN WAS INSUFFICIENT TO 

ADVISE THE JURY OF THE NEED TO 

CRITICALLY AND EFFECTIVELY EVALUATE 

HIS STATEMENT IN LIGHT OF THE REALITY 

THAT JURORS HAVE GREAT DIFFICULTY 

DISTINGUISHING BETWEEN FALSE

CONFESSIONS AND TRUE CONFESSIONS. U.S. 

CONST. AMEND VI; N.J. CONST. ART. I, PAR. 10 

(Not Raised Below)

POINT III:

THE SENTENCE IMPOSED IS MANIFESTLY 

EXCESSIVE AND MUST BE REDUCED.

A. The Sentence Imposed.

B. The Sentencing Court Engaged in Erroneous

Double Counting When It Applied Aggravating 

Factor ([Two]).

C. The Remaining Applicable Aggravating [a]nd 

Mitigating Factors Supported Imposition of 

Minimum Concurrent Sentences.

D. The Aggravated Criminal Sexual Contact 

Conviction Should Be Merged [i]nto Defendant's 

Conviction for Endangering The Welfare of [a]

Child Which Was Based [o]n [t]he Same 

Conduct.
4

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E. The Sentencing Court Erred When It Imposed [a]

$2,000 Sex Crime Victim Treatment Fund 

Penalty Without Considering Defendant's Ability 

[t]o Pay.

We reject these arguments and affirm defendant's conviction. However, 

we remand the matter to amend the judgment of conviction to merge defendant's 

conviction for aggravated criminal sexual contact (count one) with his 

conviction for endangering the welfare of a child (count two) because both were 

based on the same conduct.

2

I.

The following facts are derived from the trial record. When M.W. was 

thirteen-years old, she was residing with her mother, defendant, who is her stepfather, and younger brother in Camden. M.W. described her relationship with 

defendant for the two years prior as "fine" but "[not] perfect." In the Fall of

2011, after arriving home from church without his wife, defendant invited M.W. 

to watch television alone with him in his bedroom. He sat next to her on the 

floor and rubbed her back, gradually progressing down to her buttocks. She 

tried to move away from him but he persisted in this behavior. M.W. testified 

that this made her feel "uncomfortable." The next morning, she refrained from 

 

2

 Both parties agree to this amendment. The aggregate term of defendant's 

sentence shall remain six years with no period of mandated parole ineligibility.
5

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telling her mother about the incident because M.W. thought her mother would 

not believe her. M.W. testified that, thereafter, defendant started to act more 

forcefully by seizing her, hugging her, and grabbing her buttocks. She was 

afraid to report his behavior to anyone, including her mother, brother, or 

biological father, from whom she was estranged, because M.W. thought no one 

would believe her.

M.W. specifically recalled an incident when she was fourteen-years old 

when defendant asked her "if [she] ever experienced an orgasm?" She 

responded, "no," and walked away from him.

While still fourteen, M.W. recalled being alone with defendant in his car 

in a supermarket parking lot while her mother was shopping. Defendant asked 

M.W. if she liked it when he touched "[her]" and she said "no."

On another occasion, defendant confronted and interrogated M.W. about 

sexually provocative text messages he surreptitiously found on her phone. He 

badgered her about communicating with strangers, and asked her if she ever 

engaged in sexual activity. Defendant alarmed M.W when he told her "that he 

wanted to . . . lick [her] down there[,]" leaving her in shock.

Eventually at age sixteen, M.W. decided to confide in her pastor, D.T., 

about the recent incident. M.W. told D.T. that she "felt uncomfortable at home. 
6

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She wanted to leave home and she felt that some things were inappropriate." 

D.T. and her husband, J.T., who is also a pastor, served at Gatekeepers 

Fellowship Church, where M.W. was a student and attended religious services. 

Based upon her trust in D.T., a meeting was convened with M.W., her mother, 

defendant, and both pastors, to discuss the allegations.

At the meeting, defendant denied the allegations, and the attendees were 

given "strict instructions" by the pastors to preserve confidentiality. They did 

not notify authorities or take any action. M.W.'s mother did not do anything 

either.

Out of frustration, at age seventeen, M.W. left home and moved in with 

her father to escape defendant. She decided to inform an aunt ("M.S.") about 

her experiences with defendant and the meeting. After M.W.'s father was told 

about this history by M.W. and M.S., law enforcement was alerted.

Detective Timothy Houck of the Camden County Prosecutor's Office 

Special Victims Unit handled this case. He conducted a forensic interview of 

M.W., her mother, and M.S. An interview was conducted of defendant at the 

Prosecutor's office. He was advised of his Miranda3rights orally and in writing, 

waived them, and gave a recorded statement. In response to questioning, 

 

3

 Miranda v. Arizona, 384 U.S. 436 (1966).
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defendant admitted to massaging M.W. on "the back of her legs and the front of 

her legs" after she ostensibly complained of pain after exercising. He also 

admitted to asking her if she ever had an orgasm, but denied asking to lick her 

vagina. Shortly thereafter, he recanted and answered "yes" when asked if he 

ever told M.W. he wanted to "eat her out." He concluded that his hand slipped 

to her butt during a hug, and that he engaged in all of this conduct because he 

found her attractive, resembling her mother, and wanted "to see her [M.W.'s] 

reaction." He blamed himself and M.W., rationalizing that "she always 

approach[ed] him." 

II.

Defendant first argues that the "fresh-complaint" testimony of M.S. and 

D.T should have been barred because M.W.'s complaints were untimely made,

she did not contend that she was fearful of defendant, or that she was 

embarrassed or coerced into silence. He further argues that the fresh-complaint

testimony was cumulative, and "served only to make the jury believe that the 

State had a greater number of witnesses than the defense." We disagree.

"On appellate review, '[c]onsiderable latitude is afforded' to the court's 

ruling, which is reversed 'only if it constitutes an abuse of discretion.'" State v. 

Cole, 229 N.J. 430, 449 (2017) (citations omitted). Evidentiary determinations
8

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will be affirmed "absent a showing of an abuse of discretion. i.e., there has been 

a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) 

(quoting State v. Harris, 209 N.J. 431, 439 (2012)).

If no objection is raised before the trial court, we review for plain error 

and, "[a]ny error or omission shall be disregarded . . . unless it is of such a nature 

as to have been clearly capable of producing an unjust result . . . ." See R. 2:10-

2.

The fresh-complaint rule was established "to allow the State to meet in 

advance the negative inference which would be drawn from the absence of 

evidence that the [child] victim reported the [sexual abuse] to one to whom she 

would naturally turn for comfort and advice." State v. J.S., 222 N.J. Super. 247, 

256 (App. Div. 1988) (citation omitted). Our Supreme Court has described 

fresh-complaint evidence as follows:

[T]o qualify as fresh[-]complaint, the victim's 

statements to someone she would ordinarily turn to for 

support must have been made within a reasonable time 

after the alleged assault and must have been 

spontaneous and voluntary. At trial, fresh-complaint 

evidence serves a narrow purpose. It allows the State 

to negate the inference that the victim was not sexually 

assaulted because of her silence. Only the fact of the 

complaint, not the details, is admissible. In addition, 

the victim must be a witness in order for the State to 

introduce fresh-complaint evidence.
9

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[State v. Hill, 121 N.J. 150, 163 (1990) (citations 

omitted); see also State v. R.K., 220 N.J. 444, 455 

(2015).]

Fresh-complaints may also be admissible when "made in response to 

general, or non-coercive questioning[,]" with greater latitude shown in cases 

dealing with young children. Hill, 121 N.J. at 167. It is left to the trial court 

"to examine all the circumstances of the questioning to determine whether the 

line between coercive and benign questioning has been crossed." Id. at 170. 

Similarly, "the trial court in its discretion may, but need not, exclude cumulative 

fresh-complaint testimony that is prejudicial to defendant." Ibid.

Although fresh-complaint evidence serves a narrow purpose, and should 

not be considered as substantive evidence of guilt or as bolstering the credibility 

of the victim, R.K., 220 N.J. at 456 (citing State v. Bethune, 121 N.J. 137, 147-

48 (1990)), a review of the record reveals that the judge did not indicate that 

M.W.'s testimony was substantive evidence of defendant's abuse. Rather, the 

judge properly determined, given M.W.'s young age when the abuse commenced 

and the inaction of the adults who participated in the church meeting, that there 

was justifiable cause in permitting the fresh-complaint testimony, which was 

succinct and limited to M.W.'s reporting of abuse only. It was not until M.W. 

moved out of the home she shared with defendant, her mother, and brother, that 
10 A-4208-16T4

she confided in M.S. about the abuse, who treated M.W. "like [her] second 

daughter." The record reflects that the fresh-complaint witnesses testified as to 

the fact of M.W's complaints in terms of reporting and not substance. An 

appropriate limiting instruction and jury charge at the conclusion of trial was 

given by the judge. We are unpersuaded by defendant's contention that the judge 

erred by admitting this testimony. The limiting instruction was sufficient to 

dispel any reasonable claim of prejudice. See State v. Vallejo, 198 N.J. 122, 

129 (2009). We have no reason to believe the jurors did not follow the court's 

instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004). Accordingly, there 

was no error warranting reversal.

III.

Defendant next argues that the judge improvidently utilized Model Jury 

Charges on "Credibility of Witnesses" and the "Redacted Recorded Statement 

of Defendant" for the first time on appeal. No objection or tailored jury charges 

were proffered to the judge by defendant. The judge instructed the jury as 

follows:

As the judges of the facts, you are to determine the 

credibility of the witnesses and in determining whether 

a witness is worthy of belief and therefore credible, you 

may take into consideration the appearance and 

demeanor of the witness; the manner in which he or she 

may have testified; the witness' interest in the outcome 
11 A-4208-16T4

of the trial, if any; his or her means of obtaining 

knowledge of the facts; the witness' power of 

discernment, meaning his or her judgment or 

understanding; his or her ability to reason, observe, 

recollect, and relate; the possible bias if any in favor of 

the side for whom the witness testified; the extent to 

which if at all each witness is either corroborated or 

contradicted, supported or discredited by other 

evidence; whether the witness testified with an intent to 

deceive you; the reasonableness or unreasonableness of 

the testimony the witness has given; whether the 

witness made any inconsistent or contradictory 

statement; and any and all other matters in the evidence 

which serve to support or discredit his or her testimony.

Through this analysis as the judges of the facts, you 

weigh the testimony of each witness and then determine 

the weight to give to it. Through that process you may 

accept all of it, a portion of it, or none of it.

. . . .

There is for your consideration in this case, a recorded 

statement allegedly made by the defendant. It is your 

function to determine whether or not the statement was 

actually made by the defendant and if made, whether 

the statement or any portion of it is credible. You may 

consider all the circumstances surrounding the 

statement in making that determination with the 

following caution. I instruct you that in this case 

certain portions of the recorded statement have not been 

provided to you. You may only consider those portions 

of the statement which have been admitted in evidence 

and must not speculate as to the contents of the 

omission or the reason or reasons for the omission.
12 A-4208-16T4

Defendant argues that the jury charge should have included a novel 

instruction warning them about the alleged inherent danger of confession 

evidence. In his brief, he cites social science articles about false confessions 

and DNA evidence, and contends now on appeal that the judge should have 

considered and incorporated same. Defendant's argument lacks merit and we 

are not persuaded that the judge's use of Model Jury Charges was prejudicial or 

insufficient.

We note that, "'[i]t is difficult to overstate the importance of jury 

instructions' as '[a]ppropriate and proper charges are essential for a fair trial.'" 

State v. Scharf, 225 N.J. 547, 581 (2016) (citations omitted). The judge has an 

"independent duty . . . to ensure that the jurors receive accurate instructions on 

the law as it pertains to the facts and issues of each case . . . ." State v. Reddish, 

181 N.J. 553, 613 (2004). The plain error standard of Rule 2:10-2 applies to our 

review of the charge, and we must assure that any deficiency or defect in the 

charge was not apt to have been consequential. The judge properly "guide[d] 

the jury in the course [of] its deliberation" here. See State v. Jackmon, 305 N.J. 

Super. 274, 290 (App. Div. 1997). We find no error as to the jury charge and 

the verdict must stand.
13 A-4208-16T4

IV.

Defendant's final point on appeal is that his sentence is manifestly

excessive. As our Supreme Court has recently reaffirmed, "'when [trial judges] 

exercise discretion in accordance with the principles set forth in the Code [of 

Criminal Justice] and defined by [the Court] . . . , they need fear no secondguessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. 

Ghertler, 114 N.J. 383, 384-85 (1989)). Once the trial court has balanced the 

aggravating and mitigating factors set forth in the statute, N.J.S.A. 2C:44-1(a) 

and -1(b), it "may impose a term within the permissible range for the offense." 

Id. at 608.

In arriving at the sentence, the judge found aggravating factors two, three, 

and nine applied. See N.J.S.A. 2C:44-1(a). Addressing factor two, the gravity 

and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2), the 

judge found M.W. was particularly vulnerable and incapable of resistance due 

to her extreme youth. Addressing factor three, the risk of re-offense, N.J.S.A. 

2C:44-1(a)(3), the judge found the familial relationship and escalation of the 

miscreant conduct over the years by defendant upon M.W. was justified. Under 

factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), the judge observed 

that there was a strong need to deter defendant and others from violating the 
14 A-4208-16T4

law, clearly stating he was not "double counting." The judge found no 

mitigating factors applied in this case, and duly considered that "defendant has 

not - - had prior contact with the court system . . . ."4

On the whole, we detect no reason to disturb the trial judge's sentencing 

analysis, and will not "second-guess" his discretionary assessments. See

Bieniek, 200 N.J. at 608. The sentence imposed, a "flat sentence" of six years, 

which was below the presumptive mid-range sentence for a single second-degree 

conviction, see N.J.S.A. 2C:44-1(d) and 1(f)(1)(c), was well supported by the 

record, the presentence report, and the other relevant considerations weighed by 

the trial judge. 

We have fully considered the balance of the arguments raised by 

defendant, and are satisfied that those arguments lack sufficient merit to warrant 

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

Affirmed as to defendant's convictions, and remanded for sentencing 

consistent with this opinion. We do not retain jurisdiction.

 

4

 Defendant had one municipal court conviction in 2004 which had no bearing 

on his sentence.