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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2031-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.S.M.,
Defendant-Appellant. ___________________________
Submitted September 11, 2023 – Decided December 16, 2024
Before Judges DeAlmeida, Berdote Byrne and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 19-07-0254.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin S. Finckenauer, Assistant Deputy Public Defender, of counsel and on the briefs).
James L. Pfeiffer, Warren County Prosecutor, attorney for respondent (Naya A. Tsang, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by DeALMEIDA, J.A.D.
Defendant G.S.M. appeals from a judgment of conviction entered after a
jury convicted him of three counts arising from the sexual assault of his step -
daughter, D.B., when she was a minor, as well as the restitution component of
his sentence.1 We affirm.
I.
In 2019, defendant was married to E.M. They lived with E.M.'s two
minor children: D.B., and her brother, A.B., who was two years older than
D.B.
At trial, D.B. testified to the following. In the early morning hours of
April 25, 2019, when D.B. was twelve years old, she was in her bedroom
laying on her bed using her cellphone. She heard someone enter the room.
The person sat on the edge of the bed, then laid down next to her. D.B.
testified she was one-hundred percent certain the person was defendant
because "for a split second, [she] looked up to see who it was." She also
testified she was one-hundred percent sure the person was not her brother.
1 We refer to defendant and others by their initials to protect from public disclosure the identity of child victims of sexual assault. R. 1:38-3(c)(9). A-2031-21 2 Once defendant laid down next to her, D.B. turned over on her side to
look at her alarm clock, which read 2:01 a.m. D.B. then closed her eyes,
which she kept shut for the remainder of the assault to make it appear she was
asleep.
Defendant pulled D.B. close to him and touched her vagina both over
and under her clothes. He penetrated her vagina with his hand, which "was
very painful and uncomfortable." Neither D.B. nor defendant said anything.
Defendant then picked D.B. up and carried her to the living room. As
she was being carried, D.B. faced defendant with her head on his shoulder and
her legs wrapped around him. She could feel his facial hair rubbing against
her.
In the living room, defendant laid D.B. on a couch, laid down next to
her, touched her vagina under her clothing, and penetrated her with his hands.
The penetration was painful and D.B. heard what she thought was defendant
using lotion. Defendant put his hands on D.B.'s buttocks and kissed her
breasts. Again, neither defendant nor D.B. said anything. D.B. did not yell for
help from her mother or brother, who were home, because she was afraid
defendant would physically attack her.
A-2031-21 3 After defendant stopped assaulting D.B., she heard what sounded like
him wiping his hands on his shirt or the couch. Eventually, defendant got up
from the couch, went to the kitchen, opened the refrigerator, and took a drink,
which smelled to D.B. like alcohol.
Defendant then picked up D.B. and carried her to an upstairs guest
bedroom. Defendant laid D.B. down on the bed, laid down next to her, and
touched her again on her vagina with his hands both over and under her
clothing. Defendant again penetrated D.B.'s vagina with his hand, causing her
pain. After defendant left the room, D.B. remained in the bed and covered
herself with a sheet, fearing defendant would return.
D.B. eventually got up from the bed and walked to her mother's
bedroom, where she found her mother and defendant next to each other in bed.
D.B. laid down on the left side of the bed, with her mother between D.B. and
defendant. Defendant asked D.B.'s mother several times why D.B. was in bed
with them.
D.B. later followed her mother to the bathroom and told her she had had
a nightmare. D.B. did not tell her mother about the assaults because she was
afraid of how she would react. D.B. testified she was one-hundred percent
sure that the attacks were not a nightmare.
A-2031-21 4 The following day, D.B.'s vagina was sore. When she urinated, she felt
a burning sensation and bled slightly.
In the morning, D.B. went to school, where she planned to tell her best
friend, twelve-year-old S.D., about the assaults. However, S.D. was absent
from school that day. At about 9:00 p.m., D.B. sent a message to S.D. through
Instagram. During a subsequent exchange of messages, D.B. told S.D.
defendant had sexually assaulted her. Immediately thereafter, S.D. showed the
messages to her mother, M.F., who promptly took S.D. to the police station to
report the messages.
Later that night, police officers arrived at D.B.'s home. They asked to
speak with D.B. and her mother outside. In the presence of the officers, D.B.'s
mother asked her if defendant had sexually assaulted her. D.B. said yes and
recounted the details of the assaults. Shortly thereafter, D.B. was interviewed
by a detective. Afterwards, D.B. was taken to the hospital where a rape kit,
including the collection of DNA samples, was performed on her. The nurse
informed D.B. she had a small cut on her vagina.
A grand jury subsequently indicted defendant, charging him with:
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1);
A-2031-21 5 first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); and second-
degree sexual assault, N.J.S.A. 2C:14-2(b).
Prior to trial, the State moved to admit the contents of the Instagram
messages under the fresh complaint exception to the hearsay rule. After a
hearing at which S.D. testified, the trial court granted the State's motion. The
court found D.B. disclosed the sexual abuse to a trusted, neutral confidant
close in time to the assaults and the disclosure was self-motivated. Thus, the
court concluded the messages were admissible for the purpose of establishing
D.B. made the disclosure and the time of the disclosure, but not for the
purpose of establishing the truth of the statements she made in the messages.
At trial, the assistant prosecutor questioned D.B. about the messages, but
did not ask her about the content of the messages. D.B. confirmed only the
general statement that in the messages she disclosed to S.D. that defendant had
sexually assaulted her.
M.F. testified that when S.D. showed her the messages, S.D. was
"hysterically crying." M.F. did not reveal the content of the messages, but
testified that after she read them she took her daughter to the police station to
report their contents. M.F. cried during her testimony after being shown a
printout of the messages, saying she did not wish to look at them.
A-2031-21 6 Dr. Gladibel Medina, a pediatrician who specializes in child abuse,
testified as a medical expert. She performed a medical evaluation on D.B. in
September 2020, at the request of D.B.'s family. Medina reviewed
photographs of the injury to D.B.'s genital area. She testified the "photographs
showed an area of increased redness" at the vaginal opening and a "laceration
. . . underneath or inferior to that vaginal opening." Medina opined that the
injury was consistent with a scratch by a fingernail.
Amanda Battaglia testified as a DNA expert. She testified that samples
collected from stains on D.B.'s underwear, and vaginal, anal, and external
genital swabs showed D.B. as the only source of DNA. However, samples
taken from defendant's fingernail clippings from both hands showed a mixed
DNA profile from two contributors.
Battaglia determined with respect to the right-hand fingernail samples
that defendant was the major contributor and D.B. was the minor contributor.
The expert undertook a statistical evaluation on the minor profile found in
right-hand nail clippings to determine the rarity of D.B.'s DNA profile. She
explained the results of the evaluation as follows:
the rarity of this profile meets our threshold for source-attribution of one-in-[seven]-trillion. Meaning, I would not expect to see this profile in more than one person in every [seven]-trillion that I look at.
A-2031-21 7 ....
So the approximate world population is about [seven]- billion people. So I would need to travel to approximately 1,000 different planet [E]arths each with their own unique population before I would expect to see this DNA profile again at random.
Battaglia also testified that there are different concentration levels of
DNA in different types of cells. She explained:
DNA is present in all the nucleated cells of your body; however, depending on what type of sample is collected, you can get different concentrations of DNA. And that's based on ultimately the cell counts.
So, for example, in bodily fluids such as semen, blood, saliva, we do expect that there are a lot of cells in those samples; and therefore, we will get what is known as a high quantity of DNA.
....
Other items that are known as, for example, "touch items," where you're getting the cells basically from somebody touching an object and leaving some skin cells behind. Those generally tend to be a lower cell count, and will, therefore, be indicated by a most- often lower quantity of DNA that's ultimately detected.
Battaglia testified that, with respect to the right-hand nail clippings, the DNA
concentration from D.B. was at a very high level generally found in "semen,
blood, bodily fluid, [and] vaginal secretion samples."
A-2031-21 8 Battaglia acknowledged a DNA sample was not collected from D.B.'s
mother. As a result, she could not exclude D.B.'s mother as the minor
contributor in the right-hand nail clippings sample. With respect to the left-
hand nail clippings, Battaglia testified there was not "enough information
detected to make any qualitative comparisons for this minor" contributor.
Defendant called family members who testified the allegations were
inconsistent with his character. In addition, he introduced MRI reports
showing he suffered from a herniated disc in his back and took prescribed
medications to manage pain to cast doubt on allegations that he lifted and
carried D.B.
The jury convicted defendant on all counts. The trial court merged the
second-degree sexual assault conviction into the first-degree aggravated sexual
assault conviction and sentenced defendant to twenty-five years of
imprisonment without the possibility of parole. For the second-degree
endangering conviction, the court sentenced defendant to a concurrent eight -
year term of imprisonment. The court also imposed $22,500 in restitution.
This appeal followed. Defendant raises the following arguments.
POINT I
ALTHOUGH FRESH COMPLAINT EVIDENCE WAS INTRODUCED AT TRIAL, THERE WAS NO
A-2031-21 9 LIMITING INSTRUCTION TELLING THE JURY IT COULD NOT USE THE FRESH COMPLAINT EVIDENCE AS EITHER SUBSTANTIVE EVIDENCE OF [DEFENDANT'S] GUILT OR AS CORROBORATIVE EVIDENCE OF THE VICTIM'S TESTIMONY. THAT ERROR WAS COMPOUNDED BY THE PROSECUTOR'S IMPROPER REMARKS ABOUT THE MESSAGES DURING SUMMATION.
POINT II
THE TRIAL COURT ERRED IN FAILING TO GIVE AN IN-COURT IDENTIFICATION INSTRUCTION WHEN THE VICTIM'S IDENTIFICATION OF [DEFENDANT] WAS THE MOST IMPORTANT PIECE OF EVIDENCE AGAINST HIM AND IT WAS FOUNDED ONLY ON A BRIEF GLANCE IN A COMPLETELY DARK ROOM WITH NO LIGHTS.
POINT III
THE PROSECUTOR REPEATEDLY AND INFLAMMATORILY DENIGRATED DEFENSE COUNSEL BY ARGUING TO THE JURY THAT HIS HANDLING OF THE MOST IMPORTANT PIECES OF EVIDENCE – D.B.'S TESTIMONY AND THE DNA EVIDENCE – WAS MERELY "TRYING TO CONFUSE" THEM.
POINT IV
THE STATE GROSSLY MISSTATED THE VALUE OF THE DNA EVIDENCE BY CONVERTING THE RANDOM PROBABILITY MATCH INTO A SOURCE PROBABILITY.
A-2031-21 10 POINT V
THE CUMULATIVE IMPACT OF THE ERRORS DESCRIBED IN POINTS I, II, II, AND IV DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL.
POINT VI
THE TRIAL COURT ERRED IN IMPOSING EXCESSIVE RESTITUTION WHEN [DEFENDANT] HAS NO ABILITY TO PAY.
II.
A. Fresh Complaint Limiting Instruction.
The fresh complaint "doctrine allows the admission of evidence of a
victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to
negate the inference that the victim's initial silence or delay indicates that the
charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015). "In order to
qualify as fresh-complaint evidence, the victim's statement must have been
made spontaneously and voluntarily, within a reasonable time after the alleged
assault, to a person the victim would ordinarily turn to for support." Ibid.
(citing State v. W.B., 205 N.J. 588, 616 (2011)). "These requirements are
relaxed when they are applied to juvenile victims." Ibid. (citing State v.
Bethune, 121 N.J. 137, 143-44 (1990)).
A-2031-21 11 "Fresh complaint evidence is 'to prove only that the alleged victim
complained, not to corroborate the victim's allegations concerning the crime.'"
State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006) (quoting Bethune, 121
N.J. at 146). Thus, "[o]nly the facts that are minimally necessary to identify
the subject matter of the complaint should be admitted; the fresh-complaint
testimony is not to be used 'to corroborate the victim's allegations concerning
the crime.'" R.K., 220 N.J. at 456 (citing Bethune, 121 N.J. at 146).
"Because of the limited nature of this evidence, it is crucial for the trial
court to instruct the jury on how to utilize such evidence." R.E.B., 385 N.J.
Super. at 89 (citing State v. Buscham, 360 N.J. Super. 346, 359 (App. Div.
2003)). "The evidence can be considered by the jury in opposition to
credibility concerns that may develop regarding the victim's truthfulness
because of a failure to complain to a confidant, but the evidence cannot be
used to support the fact of abuse." Ibid.
Defendant does not contest the admission of the evidence of D.B.'s fresh
complaint, which consisted only of the fact that she disclosed sexual abuse by
defendant in the messages she exchanged with S.D. Defendant argues,
however, that the trial court's failure to instruct the jury on the limited use of
the evidence warrants reversal of his convictions. He argues the instruction
A-2031-21 12 error was exacerbated by the assistant prosecutor's statements in summation
that the fresh complaint evidence corroborated D.B.'s testimony about the
details of the assaults. Defendant also notes that in her summation, the
assistant prosecutor invited the jurors to surmise the contents of the messages
based on M.F.'s testimony that her daughter was crying after reading the
messages and on M.F. crying when shown a printout of the messages during
trial.
During their deliberations, the jury asked to see the content of the
messages. The court informed the jurors the contents of the messages were not
in evidence and therefore could not be provided to them.
Defendant did not object to the absence of the limiting instruction. It is
well-settled that “[a]ccurate and understandable jury instructions in criminal
cases are essential to a defendant's right to a fair trial.” State v. Concepcion,
111 N.J. 373, 379 (1988). However, "[i]f the defendant does not object to the
charge at the time it is given, there is a presumption that the charge was not
error and was unlikely to prejudice the defendant's case." State v. Singleton,
211 N.J. 157, 182 (2012).
Therefore, "the failure to object to a jury instruction requires review
under the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007).
A-2031-21 13 As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]
The error "must be evaluated in light 'of the overall strength of the State's
case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting Chapland, 187 N.J. at
289).
The mere possibility of an unjust result is not enough to warrant reversal
of a conviction. State v. Jordon, 147 N.J. 409, 422 (1997). "Thus, the error
will be disregarded unless a reasonable doubt has been raised whether the jury
came to a result that it otherwise might not have reached." R.K., 220 N.J. at
456 (citing State v. Daniels, 182 N.J. 80, 95 (2004)). "Plain error is more
likely to be found if there is any indication that jurors considered the fresh -
complaint testimony for an improper purpose." Ibid. "However, if the State's
case is particularly strong, any fresh-complaint instruction errors may be
deemed harmless." Ibid. (citing State v. Tirone, 64 N.J. 222, 227 (1974)).
We have reviewed the record and conclude the trial court's failure to
provide a limiting instruction does not warrant reversal of defendant's
A-2031-21 14 convictions. There is no dispute the contents of the messages were not
revealed to the jury or admitted into evidence. Testimony was limited to
general statements that in the messages D.B. disclosed to S.D. that defendant
sexually abused her.
Defendant speculates that because M.F. cried while testifying about the
messages and testified that S.D. was crying after she read the messages, her
testimony "created the space for the jury to infer that the content of the
messages was extremely disturbing, and to wonder – without any helpful
instruction from the judge – what might be in the messages." We see no
support in the record for this supposition.
The jury was aware, as is permitted under the fresh complaint doctrine,
that the messages conveyed a disclosure by a twelve-year-old girl that her
stepfather had sexually assaulted her. Nothing in the record suggests that the
messages contained any details beyond the disclosure or that the disclosure
alone – without the details of the abuse – would not be sufficiently disturbing
to make S.D. and her mother cry. Nor is there any indication the jury
considered the fact of D.B.'s disclosure as corroboration of her testimony
detailing the acts of sexual abuse inflicted on her by defendant.
A-2031-21 15 The assistant prosecutor's summation does not, as defendant argues,
invite the jury to speculate on the contents of the messages or to consider the
messages as corroboration of D.B.'s account of the assaults. In support of his
argument, defendant points to the following passage from the assistant
prosecutor's summation: "[D.B.] disclosed to her friend [S.D.]. That was
corroborated by Instagram messages that are not in evidence and you will not
know the contents of those conversations. But you did hear testimony from
[S.D.'s] mother, [M.F.]." That statement, however, suggests only the fact of
D.B.'s disclosure is corroborated by the existence of the messages and M.F.'s
testimony that her daughter received the messages, and not that the jurors
should surmise the contents of the messages or that the contents corroborate
D.B.'s testimony describing the assaults.
The facts in Buscham, on which defendant relies, are materially different
from those presently before the court. In Buscham, we held the failure to
provide a limiting instruction with respect to fresh complaint testimony
warranted reversal because the assistant prosecutor told jurors in summation
that they "can believe" the victim's testimony detailing a sexual assault based
on the emotional testimony of the witnesses who recounted the victim's fresh
complaint. 360 N.J. Super. at 359-60. Here, the assistant prosecutor did not
A-2031-21 16 suggest the jurors could find D.B.'s testimony to be corroborated by the
emotional response of M.F. and her daughter to the messages.
Nor are we convinced by defendant's argument that the jury's request to
see the contents of the messages establishes they relied on the messages for an
improper purpose. The contents of the messages were not in evidence and
were not, therefore, shown to the jury. It is mere speculation on defendant's
part that the jurors imagined the contents of the messages and assumed they
corroborated D.B.'s testimony. Nothing in the record supports that
speculation.
B. In-Court Identification Instruction.
At trial, D.B. identified defendant, who was seated in the courtroom.
Defendant argues the trial court erred by not giving the jurors an in-court
identification instruction. He argues the State's case was primarily based on
D.B.'s identification of defendant, and in light of D.B.'s admission that she saw
her assailant only for a "split second" in a dark room, the instruction was
critical to him having a fair trial.
"When identification is a 'key issue,' the trial court must instruct the jury
on identification, even if a defendant does not make that request." State v.
Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green, 86 N.J. 281, 291
A-2031-21 17 (1981)). Identification is a key issue "in cases where the State relies on a
single victim-eyewitness." Ibid. (citing State v. Frey, 194 N.J. Super. 326, 329
(App. Div. 1984)). Thus, the trial court should have given an identification
instruction to the jurors, even if not requested.
However, defendant did not object to the absence of an identification
instruction. We, therefore, review the record for plain error. Wakefield, 190
N.J. at 473. In doing so, we make a determination based on whether the
corroborative evidence of defendant's guilt is sufficiently strong to overcome
the absence of the instruction, and not on whether defendant's misidentification
argument is convincing. State v. Davis, 363 N.J. Super. 556, 561 (App. Div.
2003); Cotto, 182 N.J. at 326.
Here, the corroborating evidence of defendant's guilt included the
presence of D.B.'s DNA under his fingernails. That evidence corroborates
D.B.'s detailed account of the manner in which she was assaulted. In addition,
D.B.'s identification of defendant must be viewed in the context of her
relationship to him. At the time of the assaults, D.B. had lived with defendant
for seven years. No other adult male lived in the home. She was, therefore,
familiar with defendant and his physique. D.B. also felt defendant's facial hair
against her skin when he carried her from room to room, confirming an aspect
A-2031-21 18 of his physical features known to her. In addition, D.B. heard defendant go to
the refrigerator to obtain an alcoholic drink during the assault, and he moved
her among several rooms, suggesting a familiarity with the home. Lastly, D.B.
identified defendant shortly after the assaults in the messages she exchanged
with S.D. and never wavered in her identification of him as her assailant.
Moreover, the trial court instructed the jury on its obligation to
determine whether the State had proven each element of the charged offenses.
For example, with respect to the endangering charge, the instructions read, in
relevant part, "[t]o find [defendant] guilty of this crime the State must prove
beyond a reasonable doubt . . . that defendant knowingly engaged in sexual
conduct which would impair or debauch the morals of a child [and] . . . that
defendant had a legal duty for the care of the child . . . ." Thus, read as a
whole, the jury instructions did not permit the jurors to conclude they could
convict defendant if the State had not established beyond a reasonable doubt
that he was the person who sexually assaulted D.B. Cotto, 182 N.J. at 326-27;
State v. Gaines, 377 N.J. Super. 612, 625-26 (App. Div. 2005).
C. Prosecutorial Misconduct.
Defendant argues that in her summation, the assistant prosecutor
repeatedly and inflammatorily denigrated defense counsel by stating he was
A-2031-21 19 attempting to confuse the jury with respect to the DNA evidence. He argues
the comments were particularly damaging due to the crucial nature of that
evidence.
"Prosecutors are expected to assert vigorously the State's case and are
given considerable leeway in delivering their summations." Daniels, 182 N.J.
at 96. However, "[t]hey are duty-bound to confine their comments to facts
revealed during the trial and reasonable inferences to be drawn from that
evidence." State v. Frost, 158 N.J. 76, 85 (1999).
"Not every improper prosecutorial statement will warrant a new trial."
Daniels, 182 N.J. at 96. "[P]rosecutorial misconduct is not grounds for
reversal of a criminal conviction unless the conduct was so egregious as to
deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575
(1999). "To justify reversal, the prosecutor's conduct must have been 'clearly
and unmistakably improper,' and must have substantially prejudiced
defendant's fundamental right to have a jury fairly evaluate the merits of his
defense." Ibid. (quoting State v. Roach, 146 N.J. 208, 219 (1996)).
In our analysis, we consider: "(1) whether defendant made timely and
proper objections to the improper remarks; (2) whether the remarks were
withdrawn promptly; and (3) whether the court ordered the remarks stricken
A-2031-21 20 from the record and instructed the jury to disregard them." State v. Jones, 364
N.J. Super. 376, 384 (App. Div. 2003) (quoting Frost, 158 N.J. at 87).
In her summation, the assistant prosecutor stated that defense counsel
was attempting to confuse the jury and raising a red herring. She stated that
the
[d]efense is trying to confuse you, ladies and gentlemen. They are trying to get you and asking you to ignore the very things that I think are the foundation of your decision making. And that would be your intelligence, your experience and your common sense.
So in sum, and to address defendant's red herring, it is used to confuse you regarding the DNA. It's important to remember that DNA is all you need.
So this case, although the [d]efense wants to confuse you and make it about things other than [D.B.] and the defendant, this case is really about what the defendant did to [D.B.].
After the State's closing, defendant objected, arguing that the summation
had "disparaged the defense." After hearing argument from counsel, the trial
court concluded:
I don't know that anything [the State] said rises to the level of disparaging the [d]efense.
A-2031-21 21 ....
[A]s far as the disparaging the [d]efense remarks go . . . I think they're entitled to at least some leeway in arguing that what the [d]efense said in their closing isn't really what you heard.
So I'm not going to give any curative instruction on any of that.
We agree with the trial court's assessment of the comments made during
the State's summation. The comments to which defendant objected do not rise
to the level of disparagement of defense counsel. In the comments, which
were limited, the assistant prosecutor did not demean the role of defendant's
attorney. She instead argued, in effect, that defense counsel was urging the
jury to focus on evidence other than that which established defendant had
sexually assaulted D.B. Even if the assistant prosecutor's reference to defense
counsel's intent to confuse the jury was improper, it was an isolated remark
and does not warrant reversing defendant's convictions.
The precedents on which defendant relies, and in which convictions
were reversed based on prosecutorial misconduct, concern improper statements
directly addressing the role of defense counsel made with other improper
remarks, which, when considered together with other errors, warranted
A-2031-21 22 reversal. See e.g., Frost, 158 N.J. at 81-88 (reversing convictions for multiple
improper statements by assistant prosecutor, including "don't be distracted by
lawyer talk" by defense counsel, while recognizing that "we do not adopt a per
se rule that requires reversal of every conviction whenever there is evidence of
egregious prosecutorial misconduct during trial."); State v. Pindale, 249 N.J.
Super. 266, 279-86 (App. Div. 1991) (reversing convictions based on
improperly admitted evidence and for several improper statements by assistant
prosecutor, including "the defense's role in this case is to try to confuse you.");
State v. Lockett, 249 N.J. Super. 428, 433-34 (App. Div. 1991) (reversing
convictions based on improperly admitted evidence, improper questioning of
defendant during cross-examination, and the assistant prosecutor's summation,
which included comment that it is "typical" for defense counsel to distract
jurors with irrelevant information to keep them from looking at the facts in
evidence). We do not find equivalent circumstances to be present here.
D. DNA Evidence.
Defendant argues the State grossly misstated the value of the DNA
evidence by converting the "random probability match" into a source
probability match. In his brief, defendant correctly describes the expert's
testimony regarding the test results as confirming there is a "one[ -]in[-]seven[-
A-2031-21 23 ]trillion probability match . . . of the DNA under [defendant's] fingernails to
D.B.'s DNA, meaning one would expect one out of seven trillion random
people to have the same DNA profile." He argues the State distorted the
evidence by arguing to the jury that the expert testified there is only a one -in-
seven-trillion chance that the DNA under defendant's fingernails belonged to
someone other than D.B.
Defendant argues the State's misrepresentation is a common one referred
to as the "prosecutor's fallacy." As explained in McDaniel v. Brown, 558 U.S.
120, 128 (2010):
The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. In other words, if a juror is told the probability a member of the general population would share the same DNA is [one] in 10,000 (random match probability), and he [or she] takes that to mean there is only a [one] in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he [or she] has succumbed to the prosecutor's fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of [one] in 10,000, there is a 0.01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.
A-2031-21 24 [(citation omitted)].
Because defendant did not object to the assistant prosecutor's statement,
we review the record for plain error. Wakefield, 190 N.J. at 473. According
to defendant, the State's misstatement clouded the jury's understanding of the
DNA evidence and undermined the propriety of the jury verdict, warranting
reversal of his convictions.
The State, while not expressly conceding it mischaracterized the
evidence, argues any misstatement by the assistant prosecutor was harmless.
The State notes the jury asked to review the DNA evidence testimony after
summations.
That testimony included Battaglia's testimony that threshold source
attribution of one in seven trillion means she'd "expect to see [the DNA
profile] in less than one out of every [seven] trillion people, it exceeds that
[which] we call 'source attribution,' where we can say with confidence that the
profile came from a specific person." The State also notes that Battaglia
answered "yes" to the question of whether she was confident, based on her
training and experience, that D.B. was the source of the minor contributor
DNA found under defendant's fingernails.
A-2031-21 25 In addition, the State points out that defendant is linked to the sexual
assaults by D.B.'s testimony, including her identification of him as her
assailant. Finally, the State notes the court instructed the jury that they were
only permitted to consider witness testimony and the physical evidence, and
not the arguments made during summation.
We are persuaded by the State's arguments. While the assistant
prosecutor's comments mischaracterized the value of the DNA evidence, we
conclude that the misstatements were not plain error. As explained above, the
record demonstrates that after the misstatements, the jurors were instructed to
rely on witness testimony and physical evidence and not the remarks made
during summations. In addition, the jury heard for the second time the expert's
testimony with respect to probabilities after the summations and the DNA
evidence was not the sole evidence connecting defendant to the sexual
assaults.
E. Cumulative Error.
When addressing claims of cumulative error, the Supreme Court
repeatedly [has] made clear that [t]he proper and rational standard [for the review of claimed trial errors] is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless,
A-2031-21 26 must always be fairness. "A defendant is entitled to a fair trial but not a perfect one."
[Wakefield, 190 N.J. at 537 (second and third alterations in original) (quoting State v. R.B., 183 N.J. 308, 333-34 (2005)).]
Thus, where legal errors occur but do not individually warrant reversal of a
conviction, if those errors "in their aggregate have rendered the trial unfair, our
fundamental constitutional concepts dictate the granting of a new trial before
an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). "[T]he
predicate for relief for cumulative error must be that the probable effect of the
cumulative error was to render the underlying trial unfair." Wakefield, 190
N.J. at 538.
We disagree with defendant's argument that the errors he raised have the
cumulative effect of rendering his trial unfair.
F. Restitution.
The "amount and manner of payment of reasonable restitution is a matter
for the judgment of the sentencing judge." State v. Martinez, 392 N.J. Super.
307, 318-19 (App. Div. 2007) (quoting State v. Harris, 70 N.J. 586, 598
(1976)). "[R]estitution is proper only when the loss sustained by a victim is
the direct result of the criminal offense." State v. Newman, 132 N.J. 159, 169
(1993). In imposing restitution, "the court must balance the goals of victim-
A-2031-21 27 compensation and offender-rehabilitation, and thoughtfully establish a fair and
reasonable amount of restitution and method of repayment." Id. at 173.
Before imposing restitution, "due process requires a hearing on both the ability
to pay and the time period for making restitution." State v. McLaughlin, 310
N.J. Super. 242, 264 (App. Div. 1998) (quoting State v. Orji, 277 N.J. Super.
582, 589 (App. Div. 1994)).
Specifically, before imposing restitution, courts are to consider "if the
defendant is able, or given a fair opportunity to do so, will be able to . . . make
restitution . . . ." Newman, 132 N.J. at 169 (quoting N.J.S.A. 2C:44-2(b)). "If
the court is satisfied that a defendant possesses or could possess that ability, it
may set ‘the amount and method of payment . . . tak[ing] into account the
financial resources of the defendant and the nature of the burden that its
payment will impose.'" Ibid. (alterations in original) (quoting N.J.S.A. 2C:44-
2(c)). "[I]n determining the amount and method of payment of restitution, the
court . . . shall set the amount of restitution so as to provide the victim with the
fullest compensation for loss that is consistent with the defendant's ability to
pay." McLaughlin, 310 N.J. Super. at 263 (quoting N.J.S.A. 2C:44-2(c)).
"The court is required to state on the record the reasons for imposing the
sentence, 'including [its] findings pursuant to the criteria for . . . imposing . . .
A-2031-21 28 fines under N.J.S.A. 2C:44-1 to 2C:44-3 . . . .'" State v. Ferguson, 273 N.J.
Super. 489, 499 (App. Div. 1994) (quoting R. 3:21-4(f)). In Ferguson, we
concluded the sentencing court erred by failing to explain why it was imposing
a fine and "did not articulate any consideration of defendant's ability to pay the
fine or the burden that payment might have upon him." Ibid.
Here, the trial court found defendant could pay the restitution imposed
based on his work history and future ability to earn money, despite his twenty -
five-year sentence. See Orji, 277 N.J. Super. at 589. We see no basis on
which to disturb that decision.
Affirmed.
A-2031-21 29