RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2144-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK L. NATANNI,
Defendant-Appellant. _______________________
Submitted March 9, 2026 – Decided June 8, 2026
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 22-10- 0679.
Mark W. Catanzaro, attorney for appellant.
Andrew B. Johns, Gloucester County Prosecutor, attorney for respondent (Michael C. Mellon, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Frank L. Natanni appeals from a March 7, 2025 judgment of
conviction entered after a jury found him guilty of second-degree sexual assault
of a minor under the age of thirteen, N.J.S.A. 2C:14-2(b); second-degree
endangering sexual conduct with a child by a caretaker, N.J.S.A. 2C:24-4(a)(1)
and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The
court sentenced defendant to an aggregate six-year custodial term, subject to the
No Early Release Act, N.J.S.A. 2C:43-7.2.
Before us, defendant raises the following arguments in which he
challenges only his convictions:
POINT I
THE STATE SHOULD HAVE BEEN PRECLUDED FROM INTRODUCING TESTIMONY AS "FRESH COMPLAINT."
POINT II
THE TRIAL COURT ERRED WHEN IT PRECLUDED THE DEFENDANT FROM UTILIZING THE TRANSCRIPTS OF [J.T.]'S STATEMENTS TO THE PROSECUTOR’S OFFICE.
POINT III
THE COURT ERRED WHEN IT DENIED DEFENDANT'S REQUEST FOR A JUDGMENT OF ACQUITTAL WITH REGARD TO THE [ENDANGERING COUNT] OF THE INDICTMENT.
A-2144-24 2 POINT IV
THE COURT ERRED IN DECLINING TO GIVE AN INSTRUCTION REQUIRING UNANIMITY WITH REGARD TO THE ENDANGERING CHARGE AND PROVIDING SPECIAL INTERROGATORIES TO THE JURY.
POINT V
THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO CONVICT [DEFENDANT] OF COUNT [ONE] OF THE INDICTMENT CHARGING SEXUAL ASSAULT.
We have considered all of defendant's arguments against the record and the
applicable legal principles and conclude they are without merit. We accordingly
affirm all of the convictions.
I.
In an October 2022 superseding indictment, the State alleged defendant
sexually touched and assaulted J.T., 1 a child of a neighbor who babysat his
children and who he also coached in basketball. The State alleged defendant's
physical abuse began in October 2019 when she was twelve years old, during
which defendant also communicated explicitly with her via Snapchat, an instant
message application.
1 In order to protect the privacy of the child victim we use initials when referring to her. R. 1:38-3(c)(9). A-2144-24 3 The events prompting the indictment began in March 2020, following an
incident that raised J.T.'s parents' suspicions surrounding the nature of the
relationship between defendant and J.T. After her parents contacted their local
police department, the resulting investigation uncovered inappropriate and
suggestive Snapchat messages between J.T. and defendant and also included a
"forensic interview" with an investigating officer where J.T. "did not make any
disclosures of sexual abuse." In the March 2020 forensic interview, J.T. denied
"anything inappropriate happening between her and . . . defendant" but stated
defendant considered J.T. as his "girlfriend" and they did have physical contact
including "hug[s] or kiss[es] on the forehead."
As later introduced at trial, the Snapchat messages discovered by her
parents and further investigated by the police, which defendant sent to J.T. under
the pseudonym "Pete" to avoid suspicion, were replete with inappropriate
language and sexual innuendo. Defendant repeatedly expressed his desire to be
physically close to J.T., writing, for example, "I want you sooooooo baddddd,"
and "[o]nly if you don't care that I will be all over you." The messages
emphasized defendant's desires to "kiss" and "cuddle" with the victim. Further,
defendant described detailed sexual fantasies involving J.T., set in the den and
bedroom of his home. These fantasies included descriptions of defendant's
A-2144-24 4 desire to rub and fondle her legs and the area "around [her] waistband on [her]
pants."
Following the investigation, the State charged defendant with one count
of second degree endangering the welfare of a child by a caretaker in a February
10, 2021 indictment, based largely on the explicit nature of the Snap chat
messages. During trial preparation, after having spoken to the investigating
officer initially in March 2020, J.T. spoke again to a separate investigating
officer in August 2022 where she offered more details about the sexual abuse
she endured, following her subsequent disclosures about the extent of the abuse
to her mother. After the second interview, the State advised the court that new
information had come to light, and a new indictment would be sought. On
October 13, 2022, in a superseding indictment, the State, as noted, charged
defendant with second-degree sexual assault of a minor under the age of thirteen
and aggravated criminal sexual contact, in addition to the original one count of
endangering sexual conduct with a child by a caretaker.
Fresh Complaint Hearing
In September 2024, the State filed a motion to admit fresh complaint
testimony by J.T.'s parents with respect to her subsequent disclosures of sexual
abuse. It explained that during trial preparation, J.T. began "drop[ping] hints
A-2144-24 5 that something more may have occurred between her and [defendant]." It
contended the disclosure "came gradually after meeting with the State" and
culminated in July 2022, when J.T. disclosed to her mother that defendant
regularly sexually abused defendant. After J.T. "asked to tell her story," the
prosecutors scheduled an additional interview in August 2022. The State argued
her parents, as "people . . . J.T. felt she could confide," should be permitted to
testify in light of her age at the time of the abuse, her age at the time of the
disclosure, the "circumstances that led to J.T.'s disclosure, the general nature of
the disclosure, and the condition that J.T. was in when the disclosure was made."
Defendant opposed the State's motion and argued J.T.'s disclosures to her
parents did not constitute fresh complaints because "they were not made within
a reasonable time." He contended there existed no "reasons to permit the
extended time frame," such as J.T. being threatened by defendant or residing
with him. Included as an exhibit to defendant's opposition was the transcript of
J.T.'s initial March 2020 forensic interview and the supplemental report
prepared by the investigating officer following the subsequent August 2022
interview. Both were later introduced at trial.
During that August 2022 interview, J.T., who was fifteen years old at the
time, detailed the extent of the sexual abuse she experienced and discussed
A-2144-24 6 several instances where she was assaulted. These instances began in October
2019, when defendant began acting "weird" toward J.T., who was then twelve
years old. She explained defendant began to "touch[] her everywhere and
mak[e] it seem like an accident," including an incident around Halloween where
he "touched her vagina." She explained he began hugging her in a way that was
different than a hug from a "family member."
Another incident involved J.T. babysitting defendant's children where,
after arriving home, defendant "carried her to his bedroom where he locked the
door, got on top of her, and started kissing her neck and face." She explained
defendant "would kiss and touch her in the same way in the living room," often
making it seem like an accident and apologizing afterward. She explained these
incidents of abuse continued to occur during babysitting and in the car when
defendant would take her home from basketball practices. She also discussed
her communications with defendant via Snapchat and explained defendant
created the account for her.
On October 29, 2024, after considering the parties' briefs and submissions,
the court held an evidentiary hearing pursuant to N.J.R.E. 104, where it heard
testimony from J.T.'s parents who described their conversations regarding the
sexual abuse with their daughter after the initial March 2020 interview. First,
A-2144-24 7 her father testified that following March 2020, his daughter "started to share
more" about the nature of the abuse she suffered, including details of defendant's
"kissing and touching." He testified that her unprompted disclosures,
specifically to her mother, led to the second interview with investigators in
August 2022.
Further, her mother testified to the several disclosures J.T. made to her,
including the disclosure in July 2022, which prompted the follow-up interview.
She explained how it took almost two years for J.T. "to be able to give the
statement that she wanted to give" because, with time, she had processed her
abuse and could "disclose more." Further, J.T.'s mother stated that during her
subsequent disclosures, she did not "ask [J.T.] any questions" and preferred her
daughter to "have her voice and her moment of expressing how she felt."
Prior to the July 2022 disclosure, J.T.'s mother explained J.T. stated she
"hated" defendant on several occasions, dating back to a conversation on
vacation in June 2020 where J.T. did not "disclose details" but explained to her
mother that "there was more that happened." Following the conversation in June
2020, a "couple of months later," J.T. also disclosed that defendant, while
driving her to and from basketball practices, would pull over his car on a specific
street in the neighborhood and sexually abuse her. She also testified to the
A-2144-24 8 tumultuous relationship she had with her daughter during this period but
explained she thought the change in her daughter's demeanor was accountable
to changes in the family's circumstances, specifically her father's decision to
leave the family.
After considering the testimony and parties' arguments, the court granted
the State's motion to admit J.T.'s parents' testimony under the fresh complaint
doctrine. The court noted the doctrine "must be applied flexibly in light of the
reluctance of children to report sexual assault." The court found J.T. did not
have "sufficient time to process" at the time of the March 2020 incident in light
of the "sort of whirlwind that happened after getting the police involved." The
court further found J.T. did not immediately report her sexual abuse in part due
to the fact that J.T. "appeared to be protective of and [thought she was] in love
with [defendant] based upon what was going on."
The court found the potential testimony of both parents to be credible,
particularly her mother, who the court noted testified to significantly more
details than her father. It further explained it did not "hear anything that would
suggest that [J.T.'s] parents engaged in any sort of an interrogation or detailed
questioning of the victim." In granting the State's motion, the court also noted
A-2144-24 9 J.T. would be subject to cross-examination to all of the statements for which her
parents may testify.
After admitting the testimony, the court prepared a limiting instruction,
with which the parties agreed they were "comfortable." Before either parent
testified, the court read the following limiting instruction to the jury:
[T]he law recognizes that stereotypes about sexual assault complaints may leave some of you to question [J.T.]'s credibility based solely upon the fact that she did not complain about the alleged abuse sooner. You may or may not conclude that [J.T.]'s testimony is untruthful based only on her silence or delayed disclosure. You may consider the silence or delayed disclosure along with all of the other evidence, including [J.T.]'s explanation for her silence or delayed disclosure when you decide how much weight to afford [J.T.]'s testimony.
Evidentiary Ruling
J.T. also testified during trial. She explained how after moving into the
neighborhood in August 2019, she began playing basketball with defendant's
niece and joined the team he coached. She testified she was "confused" and
"sad" at the time, in light of her father's decision to "move out" of the home, a
fact of which defendant was aware and would attempt to "give [her] comfort."
She testified defendant "initially did not do anything" but recalled a shift
following an incident where defendant "kept asking [her] what was wrong" and
A-2144-24 10 eventually began "hugging . . . and holding [her]" while seated on his couch in
his living room. Following the incident, J.T. testified defendant began regularly
"pick[ing her] up and hav[ing her] straddle him, and he would hug [her]." She
testified defendant's conduct escalated again following an incident while
babysitting his children where "he took [her], carried [her] into his room, . . .
shut the door," and proceeded to "kiss and cuddle" her. She described
defendant's repeated and frequent touching around her upper leg, waist,
buttocks, and vaginal area, including the incident around Halloween.
J.T. testified to several other notable incidents, including one at a
sleepover and the regular abuse she endured when defendant would drive her to
and from basketball practice. J.T. stated the abuse occurred "every day or every
other day" at his home as she would go over to "hang out with [his niece] or
because he [would] ask [her] to come over." She explained defendant "told [her]
not to tell anyone or he would get in trouble."
J.T. also explained why she needed "more time to process what happened"
and stated defendant only moved away from the neighborhood after more than
a "month or so," following his arrest. She expressed defendant moving away
made her feel "happy" because she no longer "ha[d] to see him when [she]
walked outside." She explained that after processing her abuse, she had a second
A-2144-24 11 interview with an officer in August 2022, where she recalled feeling "less
guarded," "want[ing] to say and tell more," and "relieved that [she] told
someone."
During cross-examination, defense counsel attempted to read the
transcripts from J.T.'s initial statements to the investigating officers in March
2020. Following the State's objection, the court held a hearing pursuant to
N.J.R.E. 104 where J.T. was questioned. With respect to the March 2020
interview, she testified she did not "remember what [she] said or what [the
officer] asked [her], but . . . [she] could probably try to remember." Based on
J.T.'s recollection, the parties agreed to admit "the recording and the transcript"
of her statement to the investigating officer as a "past recollection recorded."
After the jury re-entered, the court experienced technical issues playing
the recording, and the parties agreed to play an audio-enhanced version of the
recording with a rolling transcript, instead of handing the jurors physical copies.
Defense counsel played the recording of the March 2020 forensic video for more
than forty minutes without interruption. In the recording, prompted by the
officer's question, J.T. affirmed she was telling the truth, detailed her
relationship with defendant, and explained her perspective of the Snapchat
messages. She denied any sexual abuse but explained she thought defendant
A-2144-24 12 viewed her as a "girlfriend" and confirmed defendant had "hugged and cuddled"
her.
Judgment of Acquittal Ruling
At the close of the State's case, which included testimony from J.T.'s
parents, the investigating officers, and J.T. herself, defendant moved for a
judgment of acquittal under Rule 3:18-1 with respect to the charge for
endangering the welfare of a minor by a caretaker. At the ensuing Reyes2
hearing, defendant argued the evidence, including the Snapchat messages, do
not "carry the day" because the evidence to convict defendant did not constitute
"sexual conduct, and it has to be . . . that he knowingly commits the offense," to
satisfy two of the necessary elements of a conviction under N.J.S.A. 2C:24-
4(a)(1). He contended the Snapchat messages, while inappropriate, were
insufficient to be "considered sexual conduct that would impair or debauch the
morals of the child."
In its ensuing oral decision, the court denied defendant's motion and
concluded the State presented sufficient evidence to proceed on the charges.
With respect to defendant's state of mind, the court found it "can be gleaned
from the totality of the evidence and the circumstances surrounding it," in light
2 State v. Reyes, 50 N.J. 454 (1967). A-2144-24 13 of the Snapchat messages and the victim's testimony. As to the sexual conduct
element, the court found the language of the Snapchat messages in addition to
defendant's inappropriate conduct including touching and kissing the victim, as
supported by her testimony, was sufficient to support the charge.
Ruling on Jury Instruction on Unanimity
As relevant to one of the issues on appeal, defendant objected at the charge
conference to the court's proposed jury charge for endangering. He argued "six
jurors cannot find that the language [of the Snapchat messages] constitutes
sexual conduct, with six other jurors finding that there was touching." Rather,
he contended the jury charge should include unanimity, and the court should
provide a special interrogatory asking the jury: 1) "whether the language
contained in the Snapchats proved beyond a reasonable doubt, that defendant
endangered the welfare of a child"; and 2) "the same thing with regard to . . .
sexual contact."
After considering the parties' arguments, the court rejected defendant's
request for a special interrogatories and explained the jury "need only agree
beyond a reasonable doubt that the conduct, whether singular or in the totality ,
meets the definition for a finding of beyond a reasonable doubt that [defendant's]
conduct meets the statute." In the context of N.J.S.A. 2C:24-4(a)(1), the court
A-2144-24 14 explained there were "a number of cases" that found "sexual conduct is not
necessarily a sexual act in the context of sexual assault, sexual contact , or
something along those lines." The court further observed its proposed jury
charge allowed the jury to evaluate whether the "overall conduct itself could
warrant a finding that . . . [it was] sexual conduct under the [N.J.S.A. 2C:24-
4(a)(1)]."
The court ultimately instructed the jury, pursuant to Model Jury Charges
(Criminal), "Endangering the Welfare of a Child, Sexual Conduct" (Second
Degree) (N.J.S.A. 2C:24-4(a)(1)) (Rev. Apr. 2014), that it could convict
defendant of this specific count if it concluded the State presented evidence to
prove beyond a reasonable doubt that defendant "did endanger the welfare of
J.T. . . . [s]pecifically by engaging in inappropriate sexual conversations and
touching J.T.'s vagina and breasts over her clothing." (Emphasis added). After
its instructions with respect to the specific counts, the court, indeed, advised that
"[t]he verdict must represent the considered judgment of each juror and must be
unanimous as to each charge. This means all of you must agree on whether the
defendant is guilty or not guilty on each charge." The court also instructed the
jury that they "may return on each crime charged a verdict of either not guilty
or guilty. [Their] verdict, whatever it may be as to each crime charged, must be
A-2144-24 15 unanimous. Each of the [twelve] members of the deliberating jury must agree
upon the verdict." After dismissing the jury to deliberate, the jury did not return
any notes expressing any form of confusion with respect to the charge.
II.
A.
First, defendant argues the court erred in its decision to allow the victim's
parents to testify under the fresh complaint doctrine. He contends "[t]he
evidence offered was not [f]resh [c]omplaint," because the victim "had not been
silent and had discussed the matter in detail during her first statement" in March
2020. He asserts "none of factors applicable to fresh complaint existed to allow
[her] parents to testify about [the victim's] subsequent disclosures," particularly
because he argues the victim had "spoke [at] length that nothing had happened."
Further, he maintains the court's conclusion that J.T.'s subsequent disclosures to
her parents in July 2022 were voluntarily "is belied by common sense and the
testimony adduced during the hearing." Finally, he asserts the court's limiting
instruction with respect to the fresh complaint testimony "compounded" the
issue because it fell "upon deaf ears as it repeatedly [told] the jury she made out
of court statements in proximity to the event." We disagree with all of these
arguments.
A-2144-24 16 "The determination [of] whether the fresh complaint rule's conditions of
admissibility have been satisfied is committed to the discretion of the trial
court." State v. C.W.H., 465 N.J. Super. 574, 600 (App. Div. 2021) (quoting
State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div. 2002)). Accordingly, an
appellate court will review such a determination for an abuse of discretion,
which "may be found if the trial court made a 'clear error of judgment.'" Ibid.
(quoting State v. Brown, 170 N.J. 138, 147 (2001)).
The fresh complaint doctrine is an exception to the hearsay rule
recognized by our Supreme Court that "allows witnesses in a criminal trial to
testify to a victim's complaint of sexual assault." State v. Hill, 121 N.J. 150,
157-63 (1990). For the fresh-complaint doctrine to apply, the proponent of the
evidence must establish: (1) the victim of the sexual assault disclosed the crime
to a natural confidante, whom the victim would ordinarily turn to for support;
(2) the disclosure was spontaneous and voluntary; and (3) the disclosure was
made within a reasonable time after the alleged assault. State v. R.K., 220 N.J.
444, 455 (2015).
"[F]resh complaint evidence serves a narrow purpose. It allows the State
to negate the inference that the victim was not sexually assaulted because of her
[or his] silence." Hill, 121 N.J. at 163. "[T]he purpose of the rule is to prove
A-2144-24 17 only that the alleged victim complained, not to corroborate the specifics of the
victim's allegations." State v. P.H., 178 N.J. 378, 393 (2004) (quoting State v.
Bethune, 121 N.J. 137, 146 (1990)). Thus, fresh complaint evidence is limited
to "[o]nly the facts that are minimally necessary to identify the subject matter of
the complaint." R.K., 220 N.J. at 456; see Hill, 121 N.J. at 163 (explaining
under the fresh complaint doctrine "[o]nly the fact of the complaint, not the
details, is admissible"). Accordingly, fresh complaint evidence may not
"corroborate the victim's allegations concerning the crime," and the court must
"assess . . . whether repeated testimony of the victim's complaint is irrelevant or
prejudicial to the defendant." Hill, 121 N.J. at 169. To this end, our Supreme
court has explained "courts should instruct the jury of the limited role that fresh
complaint evidence should play in its consideration of the case." Bethune, 121
N.J. at 148.
Because children may be too embarrassed and scared to discuss sexual
abuse, it is necessary to be flexible in the application of the fresh complaint rule
for child victims of sex crimes. Bethune, 121 N.J. at 143. "[A] substantial 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." State v. Pillar, 359 N.J. Super. 249,
A-2144-24 18 281-82 (App. Div. 2003). The lapse between a juvenile victim's complaint and
the last act must be, however, adequately explained, State v. W.B., 205 N.J. 588,
617 (2011) (recognizing that the two-year delay was justified because the victim
was "scared" and in a state of "open rebellion" against her mother), and longer
delays typically require a showing of threats or coercion, see e.g., State v.
Hummel, 132 N.J. Super. 412, 423 (App. Div. 1975) (noting that the reason for
the victim's delay was because her abuser threatened to put her away in a shelter
if she spoke); State v. L.P., 352 N.J. Super. 369, 382 (App. Div. 2002) (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").
We are satisfied the court did not abuse its discretion in admitting J.T.'s
parents' testimony under the fresh complaint doctrine. We are convinced, and
defendant does not appear to contest, that both parents, including J.T.'s mother
who testified to her intimate familiarity with her daughter's changing
temperament during this critical period, were natural confidantes for her to
disclose the extent and nature of her abuse. We further reject defendant's
argument that her subsequent disclosures were not voluntary as dictated by
"common sense." Rather, we are satisfied that J.T.'s disclosures were under her
A-2144-24 19 own volition as supported by both parents' testimony who emphasized their
intention to allow their daughter the space to process what she had endured.
Further, we also reject defendant's argument that J.T.'s disclosures were
not within a reasonable time, particularly in light of the well-established
principle of flexibility that is afforded to child victims, like J.T., who was twelve
at the time the abuse began. Although we recognize J.T.'s disclosures
culminated more than two years after the initial March 2020 incident, we are
satisfied the court properly considered that her disclosures took place gradually,
consistent with her mother's credible testimony that referenced specific
conversations beginning in June 2020, only a few months after the initial
interview. The court correctly concluded J.T. needed additional time to process
what happened to her in light of her young age, tumultuous changes at home,
and defendant's continuing presence in the neighborhood.
We are also unconvinced that J.T.'s subsequent disclosures were not, in
fact, fresh complaints, in light of her alleged "extensive" denial of sexual abuse.
We find no support in our case law for defendant's argument. Further, such a
holding would ignore scenarios where victims may initially not acknowledge,
or even deny, abuse but are later able to later communicate and discuss what
they endured. Bethune, 121 N.J. at 139-40 (admitting fresh complaint testimony
A-2144-24 20 after victim initially "denied having been sexually abused"); P.H., 178 N.J. at
384 (admitting testimony after victim "did not report the incidents . . . despite
having numerous occasions [including] an investigation by the Division of
Youth and Family Services"); L.P., 352 N.J. Super. at 376 (admitting testimony
after victim was initially removed by the State "from defendant's home for
reasons unrelated to sexual abuse").
In any event, although J.T. did not express the extent to which defendant
abused her at the time of her initial interview in March 2020, she did, indeed,
acknowledge some of defendant's physical and inappropriate conduct, as
corroborated by the Snapchat messages. Finally, to the extent defendant takes
issue with the court's limiting instruction with respect to the fresh complaint
testimony, we reject defendant's argument that the instructions, which both
parties approved, did not properly advise the jury to assess J.T.'s truthfulness
and credibility, in light of the court's express instructions to do so.
B.
Next, defendant contends the court erred in its decision to preclude
defendant from introducing the physical transcripts of the victim's statements in
her March 2020 interview. He argues the court "had no right to preclude the
A-2144-24 21 defendant from using them for purposes of impeachment" because it is a prior
inconsistent statement and emphasizes the State itself prepared these transcripts.
Our review of a trial judge's evidential rulings is "limited to examining
the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)
(citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "When a trial court admits
or excludes evidence, its determination is 'entitled to deference absent a showing
of an abuse of discretion, i.e., [that] there has been a clear error of judgment.'"
Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original)
(quoting Brown, 170 N.J. at 147). Therefore, "we will reverse an evidentiary
ruling only if it 'was so wide off the mark that a manifest denial of justice
resulted.'" Ibid. The same standard of review applies to a trial court's
"determining both the relevance of the evidence to be presented [under N.J.R.E.
401] and whether its probative value is substantially outweighed by its
prejudicial nature" under Rule 403. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,
492 (1999); N.J.R.E. 401; N.J.R.E. 403; see also State v. Lykes, 192 N.J. 519,
534 (2007).
N.J.R.E. 803 governs the admissibility of prior statements. Under
N.J.R.E. 803(a), a prior inconsistent statement of a trial witness is not excluded
as hearsay if the statement would have been admissible if made while the witness
A-2144-24 22 was testifying and was offered in accordance with N.J.R.E. 613. When the prior
inconsistent statement is offered by the party calling the witness, N.J.R.E.
803(a)(1) requires that the statement be "contained in a sound recording or . . .
writing made or signed by the witness [under] circumstances establishing its
reliability." N.J.R.E. 803(a)(1)(A).
"[A] feigned lack of recollection is an inconsistency on which the
admission of a witness's prior inconsistent statement may be based." State v.
Brown, 138 N.J. 481, 542 (1994). When a witness claims a lack of memory of
a prior inconsistent statement, if the court finds that it is "a feigned loss of
memory," the statement may be admitted under N.J.R.E. 803(a)(1). State v.
Soto, 340 N.J. Super. 47, 66 (App. Div. 2001) (citing Brown, 138 N.J. at 544).
In those circumstances, "[t]he jury is free to believe the version of the events in
the statement or the version presented at trial." Ibid. (citing Brown, 138 N.J. at
542).
We are satisfied the court did not abuse its discretion in deciding to admit
the recording and rolling transcript of the March 2020 forensic interview in
place of the actual transcript, particularly in light of defense counsel's agreement
to admit the recording and rolling transcript. We disagree with defendant's
contention that the physical transcript was necessary as the jury listened to more
A-2144-24 23 than forty minutes of the recording with a rolling transcript. We are also
satisfied that that the court did not otherwise abuse its discretion in the manner
in which it addressed the cross-examination of J.T. The record indicates defense
counsel fully cross-examined J.T., including asking her numerous questions
with respect to the March 2020 interview.
C.
In his third point, defendant maintains the court erred in denying his
motion for a judgment of acquittal because the evidence was "[in]sufficient to
establish [e]ndangering the [w]elfare of a [c]hild in violation of N.J.S.A. 2C:24-
4[(a)(1)]." With respect to the Snapchat messages, defendant argues there is not
"a single case where words alone were sufficient to constitute sexual conduct."
He asserts there was "nothing overtly sexual about the content" of those
messages such that a reasonably jury could conclude defendant knowingly
"engaged in sexual conduct." We note defendant does not appear to challenge
any other element of this crime besides the element for sexual conduct and we
accordingly consider any other argument waived. See Telebright Corp. v. Dir.,
N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a
contention waived when the party failed to include any arguments supporting
A-2144-24 24 the contention in its brief); Pressler & Verniero, Current N.J. Court Rules, cmt.
5 on R. 2:6-2 (2026) ("[A]n issue not briefed is deemed waived.").
We conduct a de novo review of a court's denial of a motion for a judgment
of acquittal at the close of the State's case pursuant to Rule 3:18-1. State v.
Josephs, 174 N.J. 44, 81 (2002). Under the Rule, a court shall enter a judgment
of acquittal at the close of the State's case on the defendant's motion or its own
initiative "if the evidence is insufficient to warrant a conviction." R. 3:18-1.
In State v. Reyes, our Supreme Court established the following standard
to determine if the State presented adequate evidence to survive a motion for
acquittal under Rule 3:18-1:
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [50 N.J. at 459.]
In our review of an order denying a motion for a judgment of acquittal,
"the relevant question is 'whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" State v. Josephs,
174 at 81 (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319
A-2144-24 25 (1979)). We "must consider the State's proofs in light of the [Reyes] standard
and . . . determine therefrom how the motion should have been decided." Ibid.
(alteration in original).
N.J.S.A. 2C:24-4(a)(1) provides:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
Sexual conduct is not defined in N.J.S.A. 2C:24-4(a)(1) but has been
interpreted as including those things prohibited by both N.J.S.A. 2C:14-2(a) and
N.J.S.A. 2C:14-2(b). State v. Perez, 177 N.J. 540, 553 (2003) ("Although the
term 'sexual conduct' is not defined, clearly included are sexual assaults and
sexual contact"). In addition, courts have held that N.J.S.A. 2C:24-4(a)(1)
permissibly criminalizes a variety of conduct that is neither a sexual assault nor
sexual contact. See State v. White, 105 N.J. Super. 234, 237 (App. Div. 1969)
(showing nude photos to a child); State v. Hackett, 323 N.J. Super. 460, 472
(App. Div. 1999) (being nude in a window where defendant could be seen by
children); State v. Maxwell, 361 N.J. Super. 502, 517-18 (Law Div. 2001), aff'd
o.b., 361 N.J. Super. 401 (App. Div. 2003) (engaging in a telephone
A-2144-24 26 conversation with children about their private parts, oral sex, and other similar
topics); State v. McInerney, 428 N.J. Super. 432, 451 (App. Div. 2012) (offering
to pay children to report their sexual activities); State v. Johnson, 460 N.J.
Super. 481, 494-95 (Law Div. 2019) (asking a child to send a photo of her
breasts).
As relevant to the appeal before us, defendant must have also engaged in
sexual conduct knowingly. While not defined in N.J.S.A. N.J.S.A. 2C:24-
4(a)(1) specifically, our Criminal Code defines "knowingly" as follows:
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.
[N.J.S.A. 2C:2-2(b)(2).]
We are satisfied there is sufficient evidence in the record that a reasonable
jury could convict defendant of child endangerment by sexual conduct of a
caretaker. We reject defendant's contention that his conviction is entirely
dependent upon the Snapchat messages and that the record, beyond the Snapchat
messages, does not include sufficient evidence to support the jury's finding. In
addition to the Snapchat messages, which in of itself are sexual and explicit, we
A-2144-24 27 are satisfied the record is replete with references to defendant's repeated and
frequent physical sexual conduct toward the victim including touching her legs,
waist, buttocks, and vaginal area, as confirmed by her testimony and the August
2022 supplemental report. In light of J.T.'s testimony, we discern that the
messages in addition to defendant's physical abuse formed the basis for which
the jury made its decision.
To the extent defendant argues he did not act knowingly, we conclude this
argument lacks sufficient merit to warrant further discussion in a written
opinion, in light of her testimony and the Snapchat messages, which directly
explain defendant's desires and intentions upon which he acted. See R. 2:11-
3(e)(2).
D.
In his fourth point, defendant maintains that the court erred in failing to
provide a "unanimity" charge and refusing to include special interrogatories
separating the two alleged acts in the indictment. Specifically, he maintains the
State's charge on the superseding indictment provided defendant committed the
offense "by engaging in inappropriate sexual conversations and touching J.T.'s
vagina and breasts." (Emphasis added). He contends requiring unanimity would
have clarified whether "the defendant endanger[ed] the child by touching or . . .
A-2144-24 28 endanger[ed] the child by the communications." Both arguments are contrary
to the record and substantively without merit.
We consider defendant's challenge to the jury charges, recognizing
"[a]ppropriate and proper charges to a jury are essential for a fair trial." State
v. Carrero, 229 N.J. 118, 127 (2017) (quoting State v. Daniels, 224 N.J. 168,
180 (2016)). "The proper standards of review of jury instructions are well -
settled: if the party contesting the instruction fails to object to it at trial, the
standard on appeal is one of plain error; if the party objects, the review is for
harmless error." State v. Cooper, 256 N.J. 593, 607 (2024) (quoting Willner v.
Vertical Reality, Inc., 235 N.J. 65, 80 (2018)).
A harmless error occurs when there is "some degree of possibility that [the
error] led to an unjust result." State v. Baum, 224 N.J. 147, 159 (2016)
(alteration in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)). "The
possibility must be real, one sufficient to raise a reasonable doubt as to whether
[the error] led the jury to a verdict it otherwise might not have reached." Cooper,
256 N.J. at 608 (alteration in original) (quoting Baum, 224 N.J. at 159). We
note that "[e]rroneous instructions are poor candidates for rehabilitation as
harmless, and are ordinarily presumed to be reversible error." State v.
A-2144-24 29 McKinney, 223 N.J. 475, 495-96 (2015) (alteration in original) (quoting State
v. Afanador, 151 N.J. 41, 54 (1997)).
Rule 1:8-9, which has constitutional underpinnings, see State v. Parker,
124 N.J. 628, 633 (1991), requires that a "verdict shall be unanimous in all
criminal actions." As a result, courts must be vigilant in ensuring that guilty
verdicts are not rendered on a jury's "patchwork" view but on a "shared" view
of the evidence. Id. at 636-37.
In this regard, the Parker Court recognized that "the unanimous jury
requirement 'impresses on the trier of fact the necessity of reaching a subjective
state of certitude on the facts in issue.'" Id. at 633 (quoting In re Winship, 397
U.S. 358, 364 (1970)). Our Supreme Court has further recognized that juries
must be unanimous on the "material facts" and "only common sense and
intuition can define the specificity with which the jury must describe the
defendant's conduct before it may convict." Parker, 124 N.J. at 634 (quoting
Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson,
91 Harv. L. Rev. 499, 502 (1977)). To determine whether a unanimity charge
is required, courts analyze two factors: (1) "whether the alleged acts are
conceptually similar or are ‘contradictory or only marginally related to each
other'"; and (2) "whether there is a 'tangible indication of jury confusion.'" State
A-2144-24 30 v. Macchia, 253 N.J. 232, 257 (2023) (quoting State v. Gandhi, 201 N.J. 161,
193 (2010)).
While providing a broad rule that a specific instruction on unanimity
should be given "in cases where there is a danger of a fragmented verdict," in
most such instances, a general unanimity instruction will suffice without any
special additional instructions. State v. Frisby, 174 N.J. 583, 597-98 (2002).
Such a special instruction only may be needed in situations where:
(1) a single crime could be proven by different theories supported by different evidence, and there is a reasonable likelihood that all jurors will not unanimously agree that the defendant's guilt was proven by the same theory; (2) the underlying facts are very complex; (3) the allegations of one count are either contradictory or marginally related to each other; (4) the indictment and proof at trial varies; or (5) there is strong evidence of jury confusion.
[State v. Cagno, 211 N.J. 488, 517 (2012) (quoting Parker, 124 N.J. at 635-36).]
When a series of alleged criminal acts committed by a defendant involve
acts that are "conceptually similar," no special jury instruction on unanimity is
required to segregate those acts. Parker, 124 N.J. at 639. For example, in State
v. T.C., 347 N.J. Super. 219, 223 (App. Div. 2002), the defendant engaged in
several forms of physical abuse and negligence of her son over a period of
roughly fifteen months, and the court accordingly provided a disjunctive
A-2144-24 31 instruction with respect to these forms of abuse. Because "there was no
indication of juror confusion, nor were there two separate theories being
submitted to the jury[,]" there was no need for an unanimity instruction, and no
error by its omission. Id. at 243. This was true even though jurors may have
convicted the defendant on her commission of different acts: "[t]here was but
one theory of ongoing emotional and physical abuse over a period of time[.]"
Ibid.; see also State v. Kane, 449 N.J. Super. 119, 127-42 (App. Div. 2017)
(where defendant assaulted victim on different occasions causing multiple
injuries, no unanimity instruction was necessary because defendant's conduct
was a "continuum of violence.").
With respect to special interrogatories, our Supreme Court has held their
use in criminal cases is "discouraged" because they have the potential to
"destroy[] the ability of the jury to deliberate upon the issue of guilt or innocence
free of extraneous influences." State v. Hill, 182 N.J. 532, 548 (2005) (quoting
State v. Diaz, 144 N.J. 628, 643-44 (1996)); see also State v. Simon, 79 N.J.
191, 199-200 (1979) (holding the use of special interrogatories may not
"proselytize the jury to the guilt of a defendant"). As we have held, a special
interrogatory should only be used in a "rare case where there is a compelling
need . . . ." State v. McAllister, 211 N.J. Super. 355, 363 (App. Div. 1986).
A-2144-24 32 The court did not err in its decision to not provide a special interrogatory
with respect to the charge for endangering charge.3 First, we reject defendant's
argument that the court did not require unanimity in light of the record that
reveals the court explained to the jury, on multiple occasions, that it must reach
its decision unanimously. Second, to the extent defendant asserts that the court's
instruction could lead to a fragmented verdict in light of the conjunctive
allegations in the indictment, we note the court, indeed, provided a conjunctive
instruction that required the jury to convict defendant only if they found
defendant committed sexual conduct "by engaging in inappropriate sexual
conversations and touching J.T.'s vagina and breasts over her clothing."
(Emphasis added). Accordingly, we reject defendant's reliance on Frisby, 174
N.J. at 588-89, a case where the court provided a disjunctive instruction in light
of the State's "two separate contentions . . . to meet the burden of proof on the
third element." Further, we note the findings underlying the jury's conviction
for sexual assault also support its findings for the endangering charge,
specifically with respect to the sexual conduct element. See Perez, 177 N.J. at
553 ("Although the term 'sexual conduct' is not defined, clearly included are
sexual assaults and sexual contact").
3 We note the jury's verdict sheet is not in the record before us. A-2144-24 33 To the extent the defendant contends the court's conjunctive instruction
was insufficient and should have explicitly provided a special interrogatory, we
are satisfied defendant's alleged conduct, including the explicit conversations
over Snapchat and frequent sexual touching, which occurred over the same
period of time, constituted an ongoing pattern of sexual conduct such that a
special interrogatory was not necessary, particularly given the concerns with
them in criminal cases. We accordingly reject defendant's argument that a
special instruction or interrogatory was required because these allegations were
neither confusing nor contradictory, supported by the jury's apparent lack of
confusion.
E.
In his last point and for the first time on appeal, defendant argues, there is
insufficient evidence to convict him of the charge for sexual assault of a minor
below the age of thirteen. He contends the State introduced no evidence to
determine the date for which any "sexual contact" with "intimate parts" took
place. He maintains, although the victim testified that defendant "touched her
vagina when she was walking up the steps on one occasion, there was no
evidence as to when that event occurred." He contends "there was no evidence
A-2144-24 34 that the jury could conclude" that defendant sexually assaulted the victim.
Again, we disagree.
As a threshold matter, when a party does not properly preserve an issue
for appeal, we may nonetheless consider whether it rises to the level of plain
error under Rule 2:10-2. State v. Clark, 251 N.J. 266, 286-87 (2022). Such a
high bar "requir[es] reversal only where the possibility of an injustice is 'real'
and 'sufficient to raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached.'" State v. Trinidad, 241 N.J. 425,
445 (2020) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
N.J.S.A. 2C:14-2(b) states: "An actor is guilty of sexual assault if he
commits an act of sexual contact with a victim who is less than [thirteen] years
old and the actor is at least four years older than the victim." N.J.S.A. 2C:14 -
1(d) defines "sexual contact" as:
an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present.
Our Supreme Court has interpreted these statutes to cover three types of
scenarios: a defendant touching himself, a defendant touching a victim, and a
A-2144-24 35 victim touching a defendant. State v. Zeidell, 154 N.J. 417, 428 (1998). The
Court explained a sexual assault under N.J.S.A. 2C:14-2(b) contains three key
elements: "(1) a victim who is less than thirteen years old, (2) a defendant-actor
who is at least four years older than the victim, and (3) a sexual contact with a
victim under the critical age." Ibid. With respect to sexual contact element, the
Court concluded sexual contact with a victim "involves an intentional or
purposeful touching of an intimate part," where "the actor may touch himself or
herself, the actor may touch the victim, or the victim may touch the actor." Ibid.
Here, we discern no error, plain or otherwise, with defendant's conviction.
In light of J.T.'s August 2022 interview and her testimony, the record is replete
with allegations of sexual contact when J.T. was less than thirteen years old,
most notably the incident in defendant's basement before Halloween in October
2019. We disagree with defendant's contention that there was no evidence of
when this event took place because J.T. testified to her demeanor following the
incident and the circumstances surrounding the event including the time of year,
notably Halloween. Further, J.T.'s testimony with respect to other incidents that
occurred while she spent time at defendant's home and when defendant would
take her to basketball practice independently support the jury's finding.
A-2144-24 36 To the extent we have not addressed any of the parties' remaining
arguments, it is because we have determined they lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(2).
Affirmed.
A-2144-24 37