STATE OF NEW JERSEY VS. CHRISTOPHER A. TARVER (16-02-0251, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0852-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER A. TARVER,

Defendant-Appellant. ___________________________

Submitted October 4, 2021 – Decided November 17, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-02-0251.

Joseph E. Krakora, Public Defender, attorney for appellant (Cody T. Mason, Assistant Deputy Public Defender, of counsel and on the briefs).

Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).

A jury found defendant Christopher A. Tarver guilty of eight counts of

second-degree endangering the welfare of a child (child endangerment),

N.J.S.A. 2C:24-4(a) (counts one, two, four, seven, eight, ten, thirteen, and

seventeen); as well as five counts of fourth-degree criminal sexual contact,

N.J.S.A. 2C:14-3(b) (counts three, six, nine, twelve, and sixteen); four counts of

second-degree official misconduct, N.J.S.A. 2C:30-2 (counts five, eleven,

fourteen, and eighteen); one count of second-degree sexual assault, N.J.S.A.

2C:14-2(c) (count fifteen); one count of second-degree pattern of official

misconduct, N.J.S.A. 2C:30-7 (count nineteen); and one count of third-degree

possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b) (count twenty-six,

renumbered count twenty at trial). The offenses arose from defendant's coaching

relationship with D.Q. (Darren),1 a then-teenaged member of a youth travel

basketball team defendant coached.

Following the trial, defendant pled guilty to one count of third-degree

child endangerment (count twenty-one), regarding Darren, and as to another

1 We use initials and pseudonyms to preserve the confidentiality of these proceedings and to protect the privacy of the victim, family members, and witnesses. N.J.S.A. 2A:82-46(a); R. 1:38-3(c)(9). A-0852-18 2 victim2 B.K. (Ben), two counts of second-degree official misconduct, N.J.S.A.

2C:30-2 (counts twenty-two and twenty-three), and one count of second-degree

pattern of official misconduct, N.J.S.A. 2C:30-7 (count twenty-four). In

exchange for the plea, the State dismissed count twenty––third-degree

possession of child pornography––and recommended defendant's plea sentence

run concurrent to his trial sentence.3

On appeal, he argues:

POINT I

THE SECOND-DEGREE ENDANGERING CHARGES AT TRIAL VIOLATED THE EX POST FACTO PROVISIONS OF THE STATE AND FEDERAL CONSTITUTIONS AND UNFAIRLY PREJUDICED DEFENDANT SUCH THAT REVERSAL ON ALL COUNTS IS REQUIRED. (Not Raised Below).

2 The charges against other victims, also members of defendant's travel youth basketball team, were severed from defendant's trial. 3 Defendant was sentenced to an aggregate fifty-two-year prison term, with twenty-one years, nine months, and nineteen days of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served at the Adult Diagnostic and Treatment Center. Additionally, an aggregate twenty-year term of imprisonment, with ten years of parole ineligibility, was imposed against defendant on the guilty pleas, running concurrent to the trial convictions. A-0852-18 3 POINT II

REVERSAL IS REQUIRED BECAUSE SUBSTANTIAL BAD-ACT EVIDENCE WAS INTRODUCED DUE TO ERRONEOUS COURT RULINGS AND THE INEFFECTIVENESS OF DEFENSE COUNSEL, AND BECAUSE INADEQUATE JURY INSTRUCTIONS WERE PROVIDED. (Partially Raised [Below]).

A. The Trial Was Improperly Overwhelmed by Evidence of Uncharged Conduct Involving Sex Acts, Drugs, and Alcohol.

B. Counsel Was Ineffective when He Elicited Details of Severed Allegations and the Court Erred in Admitting Additional Bad Act Evidence in Response.

1. Trial Counsel Was Ineffective when He Elicited Allegations Regarding Severed Charges.

2. The Court Wrongly Admitted Inflammatory Evidence Under the Opening-the-Door Doctrine.

C. The Court Erred in Admitting Additional Bad-Act Evidence.

D. The Risk of Harm Was Further Enhanced by the Failure to Instruct the Jury on How to Consider the Multiple Charges.

POINT III

THE STATE'S CASE WAS BOLSTERED BY IMPROPER "FRESH[]COMPLAINT" TESTIMONY THAT RELATED TO UNCHARGED CONDUCT AND WAS UNTIMELY, AND WHICH WAS THEN INACCURATELY PRESENTED TO SUGGEST

A-0852-18 4 THAT IT RELATED TO THE CHARGED OFFENSES. (Partially Raised [Below]).

POINT IV

THE STATE'S CASE WAS IMPROPERLY BOLSTERED BY OPINION TESTIMONY, HEARSAY, AND OVERT EMOTIONAL APPEALS. (Not Raised Below).

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL AND WARRANTS REVERSAL. (Not Raised Below).

POINT VI

RESENTENCING IS REQUIRED BECAUSE THE 52- YEAR SENTENCE WAS BASED ON IMPROPER CHARGES AND A FLAWED LEGAL ANALYSIS, AND BECAUSE THE COURT IMPROPERLY IMPOSED A NERA SENTENCE ON COUNT 15.

We reverse and remand for retrial because the prosecution of the eight

counts of child endangerment violated the ex post facto clauses of the state and

federal constitutions and, thus, unfairly prejudiced defendant's trial as to the

remaining counts for which he was convicted. Because defendant's post-trial

guilty pleas were the result of his convictions at jury trial that we vacate, he may

move before the trial court to have the guilty pleas withdrawn. Due to our

remand, we address and conclude the trial court mistakenly applied its discretion

A-0852-18 5 in admitting testimony of: (1) Darren's girlfriend as fresh complaint evidence;

(2) a substantial number of uncharged other-wrongs or bad-acts (hereinafter

"bad acts") evidence of defendant giving alcohol and marijuana to an underaged

Darren and engaging in sexual misconduct outside our state; (3) another alleged

victim about defendant's conduct towards him regarding drug use, sex acts, and

viewing his genitals; and (4) uncharged bad acts by defendant with minors other

than Darren. These errors should not be repeated on retrial.

I.

Defendant's ex post facto claims––as well as other contentions discussed

later––were not raised before the trial court; therefore, they must be reviewed

for plain error. R. 2:10-2. Under that standard, an unchallenged error

constitutes plain error if it was "of such a nature as to have been clearly capable

of producing an unjust result." Ibid. "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." State v. R.K., 220 N.J. 444, 456 (2015).

Our "state and federal constitutions forbid the legislative branch from

passing 'ex post facto' laws." State v. Natale, 184 N.J. 458, 490 (2005) (citing

U.S. Const. art. I, § 9, cl. 3; U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, §

7, ¶ 3). Ex post facto laws are prohibited "to assure that legislative Acts give

A-0852-18 6 fair warning of their effect and permit individuals to rely on their meaning until

explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981).

Consequently, "unforeseeable judicial enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post facto law." Natale, 184 N.J. at

490 (quoting State v. Young, 77 N.J. 245, 253 (1978) (per curiam)). Yet, "the

Ex Post Facto Clause bars retroactive judicial enlargement of a criminal statute

only where it is 'unexpected and indefensible by reference to the law which had

been expressed prior to the conduct in issue.'" Id. at 490-91 (quoting Rogers v.

Tennessee, 532 U.S. 451, 457 (2001)). "Critical to relief under the Ex Post Facto

Clause is not an individual's right to less punishment, but the lack of fair notice

and governmental restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated." Weaver, 450 U.S. at

30.

A "law is retrospective if it 'appl[ies] to events occurring before its

enactment' or 'if it changes the legal consequences of acts completed before its

effective date.'" Riley v. N.J. State Parole Bd., 219 N.J. 270, 285 (2014)

(alteration in original) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)).

Nevertheless, "'[t]here is no ex post facto violation . . . if the change in the law

is merely procedural and does not increase the punishment, nor change the

A-0852-18 7 ingredients of the offence or the ultimate facts necessary to establish guilt.'"

Natale, 184 N.J. at 491 (quoting Miller, 482 U.S. at 433).

Defendant's eight child endangering convictions under N.J.S.A.

2C:24-4(a) were based solely on acts he committed in 2010 and 2011 when

Darren was sixteen and seventeen years old. Focusing on the application of the

ex post facto clause to those convictions, we need not detail the alleged sordid

acts forming the basis of the convictions. We leave specific mention of those

allegations for our discussion below.

In 2010 and 2011, N.J.S.A. 2C:24-4 provided:

a. 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, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

b. (1) As used in this subsection:

"Child" means any person under 16 years of age.

[L. 2001, c. 291, § 1 (emphasis added).]

A-0852-18 8 In 2013, N.J.S.A. 2C:24-4 was amended to raise the statute's protected age

of victims from under sixteen years old to under eighteen years old. L. 2013, c.

51, § 13. Defendant thus argues he could not be guilty of child endangerment

under the statute for conduct allegedly occurring in 2010 or 2011, when Darren

was not under the age of sixteen, and any retroactive application of the 2013

amendment is contrary to the ex post facto clause of the New Jersey

Constitution. We agree.

The State argues the 2013 amendment "had no effect on the charge of

second-degree child endangerment because the conduct prohibited by N.J.S.A.

2C:24-4(a) already applied to children under the age of eighteen." The State

explained,

[b]y incorporating the Title 9 definition of "abused or neglected child" into the definition of second-degree child endangerment and by declining to further limit the age of the child-victim as it had done in defining third- degree child endangerment, the Legislature expressed in plain language its intent to protect any child under eighteen from abuse by any person with a legal duty or assumed responsibility for the child's care. . . . The expressly incorporated Title 9 definition of "abused or neglected child" controls the definition of second- degree child endangerment under N.J.S.A. 2C:24-4(a).

N.J.S.A. 2C:24-4(a) includes child endangering both by sexual conduct

and by abuse or neglect. Contrary to the State's argument, the plain language of

A-0852-18 9 N.J.S.A. 2C:24-4(a) prior to its amendment clearly established Title 9 was

incorporated only as a reference to the type of "harm" to a child required to

establish the offense. See State v. Demarest, 252 N.J. Super. 323, 329 (App.

Div. 1991) ("Although N.J.S.A. 2C:24-4(a) incorporates the provisions of Title

9 to describe the kind of 'harm' to a child required to establish the offense, it

does not refer to Title 9 to define the other elements of the offense . . . ."). In

fact, both the original and amended versions of N.J.S.A. 2C:24-4(a) divide the

two kinds of endangering conduct into separate sections, endangering by sexual

conduct and by abuse or neglect, and only references Title 9 in the second

subsection relating to endangering by abuse or neglect. The age distinction

between the statute's two sections was addressed in In re R.B., 376 N.J. Super.

451, 474 (App. Div. 2005), overruled on other grounds, In re T.T., 188 N.J. 321

(2006), where we held at that time "[b]oth the Title 9 offense and the Title 2C

offense are directed at the abuse and endangerment of children. [Title 2C] is

only applicable to children under sixteen, while [Title 9] applies if the child is

under eighteen."

The State also mistakenly relies on State v. McInerney, 428 N.J. Super.

432 (App. Div. 2012), in support of its position the statute had applied to

A-0852-18 10 children under the age of eighteen before the amendment. In McInerney, we

only mentioned the applicable age in a single sentence, stating:

The Legislature's focus on this harm [4] is evidenced not only by the enhanced punishment but also by the fact that only those who have a legal duty or have assumed responsibility for care of the child may be convicted of endangering the welfare of a child sixteen years of age or older under N.J.S.A. 2C:24-4(a).

[428 N.J. Super. at 441.]

That sentence, however, was merely dicta and made without addressing the

statute's amendment increasing the protected age to under eighteen years old. In

fact, after McInerney, our Supreme Court specifically acknowledged in State v.

Fugua, 234 N.J. 583, 595 (2018), and In re Cohen, 220 N.J. 7, 18 (2014), the

statute's amendment enhanced the protected age from under sixteen years old to

eighteen years old. The State's argument is belied by the position it took in In

re R.B., prior to the amendment of N.J.S.A. 2C:24-4(a), where "[t]he State

concede[d] that [the statute was] not applicable because [the victims] were over

sixteen." 376 N.J. Super. at 467.

4 Referring to "the profound effect on a child when the harm [of endangering] is inflicted by a parental figure in whom the child trusts." McInerney, 428 N.J. Super. at 441 (alteration in original) (citing State v. Galloway, 133 N.J. 631, 660-61 (1993)).

A-0852-18 11 On the other hand, McInerney directly contradicts the State's argument

that N.J.S.A. 2C:24-4(a) incorporated the Title 9 definition of "abused or

neglected child," when this court determined "[t]he language of N.J.S.A.

2C:24-4(a) plainly does not incorporate the provisions of Title 9 except with

respect to the 'harm that would make a child abused or neglected.'" 428 N.J.

Super. at 447.

In sum, there is no question that N.J.S.A. 2C:24-4(a), prior to its 2013

amendment, defined "child" as any person under sixteen years of age.

Defendant, therefore, cannot be guilty of child endangerment for acts he

committed against Darren in 2010 and 2011, when Darren was sixteen and

seventeen years old, respectively. Defendant's prosecution and convictions on

those charges constitute plain error and are reversed.

Further, we conclude the improper charges of child endangerment

substantially prejudiced defendant and deprived him of a fair trial as to the

remaining charges of which he was convicted. The State presented a significant

amount of inflammatory evidence, including a substantial number of uncharged

bad acts to prove the other allegations against defendant. The evidence was

highly prejudicial, as explained in detail later, resulting in an inherent danger "a

jury may convict a defendant not for the offense charged, but for the extrinsic

A-0852-18 12 offense." State v. Garrison, 228 N.J. 182, 193-94 (2017). We are convinced

"the inherently prejudicial nature of [wrongs or bad acts] evidence cast[ed]

doubt on [the] jury's ability to follow even the most precise limiting instruction."

State v. Stevens, 115 N.J. 289, 309 (1989).

Moreover, the State's emphasis on the eight improper child endangerment

offenses throughout its opening and summation causes significant concern. Our

Supreme Court has recognized "[m]ultiple charges may suggest propensity for

crime, and there is the possibility that proof as to one offense will enter into the

consideration of another charge." State v. Manney, 26 N.J. 362, 368 (1958).

The substantial testimony the State presented to prove the child endangerment

allegations created a significant possibility that the evidence presented on those

improper charges colored the jury's deliberation in its consideration of the

remaining charges. Hence, defendant was deprived of a fair trial as to the

remaining counts, and therefore, we vacate the convictions on the remaining

counts as well and remand for a new trial.

II.

In view of our vacation of all of defendant's convictions, defendant raises

several other claims of error we must address to give guidance to the trial court

at retrial.

A-0852-18 13 A.

Fresh Complaint

At a pretrial N.J.R.E. 104 hearing, D.M. (Daria), Darren's ex-girlfriend,

testified that in January 2013, Darren told her about defendant's inappropriate

conduct towards him during a basketball tournament in Florida. She said Darren

told her that while he was "intoxicated," defendant "touched him, like [in] his

crotch area," and "[came] on to [him] somehow physically with touching in

inappropriate places," such as his "inner thigh or grab[bing] . . . his penis."

In ruling Daria's testimony would be admissible as fresh complaint

testimony, the trial court explained:

[A]lthough the [i]ndictment ended with allegations that took place up to a certain date, there may have been ongoing contact after the fact.

It appears that . . . the relationship was ongoing. Whether it continued to be sexual or was just [through texts] at that point in January [20]13, there was still an ongoing relationship between [defendant] and [Darren], based upon . . . text messages at [the] minimum.

And so, the fact that there's this relationship going on while this disclosure is being made in January or February . . . 2013, from today, it appeared more that it was January . . . 2013—there really wasn't a passage of time that would be damaging and take it out of the fresh complaint area.

A-0852-18 14 The fact that she was his girlfriend and they're lying in bed and sharing . . . what appears to be the dark side of their lives does demonstrate that . . . this was an intimate relationship.

She was a natural confidante, which is . . . also a part of the fresh complaint criteria that we look at. She is someone that he would open up to and did open up to on the date in question.

Before us, defendant contends the trial court erred in allowing Daria's

testimony that Darren complained to her regarding defendant inappropriately

touching him before he reported the incidents to law enforcement as fresh

complaint evidence. Defendant first asserts the purported complaints concerned

allegations of out-of-state conduct, with no indication when the alleged

misconduct occurred to establish the complaints were timely made. He

maintains the "error was . . . compounded when the court allowed the State to

misrepresent the complaint" pertained to charged offenses. According to

defendant, "the testimony was presented in a misleading and highly prejudicial

way," and "the jury was left with the inescapable impression" that defendant had

told Daria about incidents that were part of the charged offenses, when in fact it

was about an uncharged offense that occurred in Florida. Finally, defendant

argues "the court not only failed to limit the risk of harm, but reinforced it by

providing two inaccurate and incomplete fresh[]complaint instructions."

A-0852-18 15 We conclude the trial court mistakenly applied its discretion in admitting

Daria's testimony as a fresh complaint and thereby denied him his right to a fair

trial, because there was no showing that the complaint to Daria was timely made.

See State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div. 2002) ("The

determination whether the fresh complaint rule's conditions of admissibility

have been satisfied is committed to the discretion of the trial court.") (citing

State v. Hill, 121 N.J. 150, 167-68 (1990)); Griffin v. City of E. Orange, 225

N.J. 400, 413 (2016) ("[W]e will reverse an evidentiary ruling only if it 'was so

wide [of] the mark that a manifest denial of justice resulted.'") (quoting Green

v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Under the fresh complaint

rule, the State can present "evidence of a victim's complaint of sexual abuse,

[which is] otherwise inadmissible as hearsay, to negate the inference that the

victim's initial silence or delay indicates that the charge is fabricated." R.K.,

220 N.J. at 455. Still, "the trial court is required to charge the jury that

fresh[]complaint testimony is not to be considered as substantive evidence of

guilt, or as bolstering the credibility of the victim; it may only be considered for

the limited purpose of confirming that a complaint was made." Id. at 456 (citing

State v. Bethune, 121 N.J. 137, 147-48 (1990)).

A-0852-18 16 "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." Id. at 455 (citing State v. W.B., 205 N.J. 588, 616 (2011)). In

determining whether a complaint was made within a reasonable time after the

act(s) occurred, the lapse of time between the incident(s) and the reporting does

not bar the statement if explainable by the youth of the victim and the statement's

attendant circumstances, such as "being cajoled and coerced into remaining

silent by their abusers." Bethune, 121 N.J. at 143. Stated differently, the

reasonable time component of the fresh complaint rule must be applied flexibly

"in light of the reluctance of children to report a sexual assault and their limited

understanding of what was done to them." W.B., 205 N.J. at 618 (citing State

v. P.H., 178 N.J. 378, 393 (2004)).

We agree with defendant that the State failed to establish that Darren's

complaint to Daria that he was sexually abused by defendant was timely made

to qualify as a fresh complaint. She testified that in 2013, Darren told her

defendant had inappropriately touched him during an out-of-state tournament,

which she believed was in Florida. The State's evidence was that Darren

attended two tournaments in Florida, one in 2010 and one in 2011. The State

A-0852-18 17 argues that based on Daria's testimony at the N.J.R.E. 104 hearing, "it can be

inferred that the incident Darren disclosed was the one that occurred during the

July 2011 Nike Super Showcase in Orlando, Florida, where[,] for the first time,

defendant touched Darren's genitals under his boxers." But Daria, admitting her

recollection was "shaky," did not know which tournament Darren was referring

to. Given there was no accurate way to determine when and where the

complained of incident occurred, the State did not properly establish the

complaint was timely.

Even if we agree with the State that Darren was abused in July 2011 and

he complained to Daria in January 2013, a year-and-a-half later, we still find

under the circumstances his complaints were not timely made. In State v.

Hummel, the victim was a twelve-year-old foster child when she entered the

defendant's home, was fifteen years old when she left his home, and had been

abused for a period of three years before making her complaint. 132 N.J. Super.

412, 418-19 (App. Div. 1975). We thus determined that a four-to-six-week

delay in disclosing the abuse was reasonable. Id. at 423. In State v. Kozarski,

143 N.J. Super. 12, 16-17 (App. Div. 1976), we determined that an eleven-year-

old victim's two-week delay in telling his mother about the abuse was reasonable

given the natural reluctance of a young boy to divulge such information to his

A-0852-18 18 parents. In contrast, Darren's delay in complaining was not weeks later, but was

a year-and-a-half later. He was not living under defendant's roof, and he was

almost entering adulthood at seventeen years old in July 2011, when the alleged

incident occurred, and almost nineteen years old 5 in January 2013, when he

complained to Daria.

The State's reliance on W.B. to support its argument that the lapse in time

in Darren's complaints was reasonable is misplaced. In W.B., our Supreme

Court determined that a delay in disclosing alleged sexual assault of

approximately two years was reasonable for purposes of admitting the fresh

complaint testimony based on the particular circumstances of that case. 205 N.J.

at 619. The victim was fourteen years old when the defendant's abuse occurred,

and sixteen when she complained to her former boyfriend. Id. at 597. She was

the defendant's stepdaughter, had lived with him during the attacks and at least

some of the interval of nondisclosure, and was afraid to report the abuse. Id. at

618-19.

As mentioned, Darren was not "young" at seventeen years old in July

2011, when the alleged incident occurred, and almost nineteen years old in

January 2013, when he complained to Daria. Darren is not related to defendant

5 He was eighteen and nine months years old. A-0852-18 19 and at no time lived with him. He was away from defendant and had ample

opportunities to disclose the alleged sexual abuse. Although Darren's

relationship with defendant was ongoing and, based on Darren's testimony, had

started when Darren was only sixteen years old, there was no evidence that

defendant threatened Darren with physical harm if he disclosed their

relationship. Rather, Darren feared the possibility of being kicked off

defendant's basketball team, which he acknowledged was very important to him

at the time because it impacted his potential to play college basketball. Further,

the "flexibility" that normally applies under the fresh complaint rule to children

is not compelling here. A year-and-a-half delay was not reasonable under the

circumstances because during that interval Darren stopped playing on

defendant's basketball team and had reached the age of majority, and there was

no evidence that Darren feared for his safety if he disclosed the alleged abuse.

Since the trial court failed to point to any applicable authority supporting the

conclusion that a delay of a year-and-a-half, or nine months after reaching the

age of majority, was reasonable under comparable circumstances, the court

mistakenly abused its discretion by admitting the fresh complaint evidence.

For the sake of completeness, we also address defendant's other fresh

complaint contentions. We appreciate defendant's contention that Daria's

A-0852-18 20 testimony about Darren's complaints was "highly prejudicial" because it left the

jury "with the inescapable impression that Darren complained of the charged

conduct" that occurred in New Jersey. Neither party, nor have we, come across

any case law involving the use of fresh complaints that relate to uncharged

sexual offenses. Daria's testimony, however, was not admitted for the purpose

of showing that he committed the charged offense but for the "narrow purpose"

to negate the inference that the abuse did not occur because of his silence. See

Hill, 121 N.J. at 163. As discussed below, the trial court properly advised the

jury in accordance with our guidelines of the purpose for which the testimony

was presented. Hence, any confusion as to whether the fresh complaint conduct

occurred in New Jersey was harmless.

Lastly, we address defendant's challenge to the instructions to the jury

about how to consider fresh complaint evidence. Defendant argues "the court

not only failed to limit the risk of harm [in admitting Daria's testimony] but

reinforced it by providing two inaccurate and incomplete fresh[]complaint

instructions." Because there was no objection to the instruction at trial, it may

only be the basis for reversal if it amounted to plain error. R. 2:10-2. Plain error

in a jury charge is one with the possibility to produce an unjust result "sufficient

to raise a reasonable doubt as to whether the error led the jury to a result it

A-0852-18 21 otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997)

(quoting State v. Macon, 57 N.J. 325, 336 (1971)). The charge must be read as

a whole in determining whether there was any error. Ibid. (citing State v.

Wilbely, 63 N.J. 420, 422 (1973)). We conclude there was nothing in the

instruction provided that could have led the jury to reach an unjust result.

New Jersey courts "have always placed an extraordinarily high value on

the importance of appropriate and proper jury charges to the right to trial by

jury. Erroneous instructions on matters or issues material to the jurors'

deliberations are presumed to be reversible error." State v. Grunow, 102 N.J.

133, 148 (1986) (citing State v. Collier, 90 N.J. 117, 122-23 (1982)). Erroneous

instructions are generally considered to be "poor candidates for rehabilitation

under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

A day after Daria testified, and eight days after Darren testified regarding

the disclosure to Daria, the court instructed the jury as follows:

Now, in the case you heard testimony . . . that [sometime] after the alleged sexual offense, [Darren] complained to [Daria] about what had taken place.

More particularly, there was testimony that he disclosed to her that he was sexually assaulted.

The law recognizes that people might assume that anyone subjected to a sexual offense would complain

A-0852-18 22 within a reasonable time to someone whom he would ordinarily turn for sympathy, protection, and advice.

If there was no evidence that [Darren] made a such a complaint, some might conclude that no sexual offense occurred.

As a result, in cases involving an allegation of sexual offenses, the State is permitted to introduce evidence of the complaint.

The only reason that the evidence . . . is permitted is to negate the inference that [Darren] failed to confide in anyone about the sexual offense. In other words, the narrow purpose of the fresh complaint rule is to allow the State to introduce such evidence to negate any inference that [Darren] failed to tell anyone about the sexual offense, and that, therefore, this later assertion could not be believed.

A fresh complaint is not evidence that the sexual offense actually occurred, or that [Darren] is credible. It merely serves to negate any inference that, because of his assumed silence, the offense did not occur.

It does not strengthen his credibility. It does not prove the underlying truth of the sexual offense.

A fresh complaint only dispels any negative inferences that might be made from his assumed silence. In determining whether a complaint was, in fact, made, you may consider all of the relevant factors in evidence.

You may consider your observations of the age and demeanor of [Darren], your evaluation of his background including his relationship, if any, . . . with the defendant, and the nature of his relationship with

A-0852-18 23 [Daria]. And you know, that she's the person to whom that disclosure was allegedly made.

In this context, you may consider the timeliness of the complaint, and the likelihood that [Darren] would complain under the circumstances described.

If . . . there was a delay in making a complaint, you may consider whether any circumstances existed which would explain the delay.

You may consider the conduct and demeanor of [Darren] at the time of the complaint as well his physical or mental condition, including any evidence of physical injury.

You may also consider whether the complaint was volunteered by [Darren], or whether it was the result of an interrogation.

It is, of course, up to you to determine what the facts are with regard to the circumstances of the complaint, and what weight to give these facts in determining whether or not a complaint was made.

As I have indicated earlier, this testimony was for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that the sexual offense occurred, nor proof that [Darren] was truthful.

It merely dispels any negative inference that might arise from his assumed silence. It eliminates any negative inference that his claims of having been sexually assaulted are false, because of his assumed failure to have confided in anyone about the sexual offense.

A-0852-18 24 [(Emphasis added).]

The court provided essentially the same instruction to the jury prior to its

deliberations.

While the jury charge did not perfectly follow the model jury charge, 6 and

should have been provided immediately after Daria testified, 7 it sufficiently

advised the jury of the limited purpose of the fresh complaint evidence to negate

the inference that defendant was not sexually abused because of his silence in

disclosing the abuse and not to use it to establish defendant's guilt. Considering

the sum of the fresh complaint evidence instructions provided to the jury, there

was no plain error as it was not clearly capable of producing an unjust result.

In sum, the trial court mistakenly applied its discretion by admitting the

fresh complaint evidence because the complaint was not made within a

reasonable time based on the length of the delay and Darren's age at the time of

the disclosure.

6 The court did not instruct the jury to consider whether the fresh complaint was "the product of suggestion," i.e., by Daria or Darren's parents, as set forth in Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007). 7 See State v. Blakney, 189 N.J. 88, 93 (2006) (noting "the better practice is to give limiting instructions not only at the time that other-crimes evidence is presented, but also in the final jury charge."). A-0852-18 25 B.

Bad Acts Evidence Involving Darren

At the same pretrial N.J.R.E. 104 hearing referenced earlier, the trial court

determined uncharged claims that defendant, outside of New Jersey, provided

Darren with alcohol and marijuana and engaged in sexual misconduct, were

admissible as "intrinsic" evidence under State v. Rose, 206 N.J. 141 (2011) and

admissible under N.J.R.E. 404(b).

In describing defendant's sexual advances towards Darren, the court

reasoned:

[I]t is intrinsic [under Rose], not just because we have . . . incidents in New Jersey and in between we have incidents out of state, but because there appeared to be more a progression in the relationship.

. . . [T]he statement of facts . . . in this case, . . . it did appear that it's a relationship that's starting out.

It's starting out with . . . a pat on the behind. It's . . . progressing until we have . . . the incidents described by [the prosecutor], and each time there was a contact, there was a progression in the relationship that was growing even more and more physical over the time period. And some of those incidents that were out of state were a part of this progression of the relationship.

A-0852-18 26 The court also found the bad acts evidence was admissible under a Cofield8

analysis.

Defendant argues the court erred by admitting a substantial and

unnecessary amount––"[a]t least half the trial" evidence––of uncharged

allegations of bad acts evidence that occurred outside of New Jersey and alleged

acts involving minors other than Darren. He says: (1) the jury was improperly

overwhelmed by the sheer volume of evidence of uncharged conduct involving

sex acts, drugs, and alcohol; (2) defense counsel was ineffective when he elicited

details of severed allegations and the court erred by admitting additional bad

acts evidence in response; (3) the court erred by admitting additional bad acts

evidence; and (4) the risk of harm was further enhanced by the failure to instruct

the jury on how to consider the multiple charges.

Generally, "evidence of other crimes, wrongs, or acts is not admissible to

prove a person's disposition in order to show that on a particular occasion the

person acted in conformity with such disposition." N.J.R.E. 404(b)(1).

Accordingly, "[e]vidence regarding other specific acts may not be used to prove

the commission of a particular act on a particular occasion, unless they establish

a habit or routine practice under N.J.R.E. 406." Biunno, Weissbard & Zegas,

8 State v. Cofield, 127 N.J. 328 (1992). A-0852-18 27 Current N.J. Rules of Evidence, cmt. 1(b) on N.J.R.E. 404 (2021). Rule 404(b)

is based on "the inordinate prejudice to the defendant inherent in other -crimes

evidence." State v. Hernandez, 334 N.J. Super. 264, 269 (App. Div. 2000), aff'd

as mod., 170 N.J. 106 (2001). "The underlying danger of admitting other-crime

evidence is that the jury may convict the defendant because he is 'a "bad" person

in general.'" Cofield, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77

(1987)). "A defendant may not be convicted simply because the jury believes

that he is a bad person." State v. Skinner, 218 N.J. 496, 514 (2014).

Evidence of other crimes and bad acts "may be admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident when such matters are

relevant to a material issue in dispute." N.J.R.E. 404(b)(2). Thus, evidence of

a prior bad act may be admissible to establish a "common scheme or plan, a

signature crime, motive, and most frequently, to impeach the accused who takes

the witness stand, but only through a conviction." State v. Weeks, 107 N.J. 396,

406-07 (1987). In Cofield, our Supreme Court set forth a four-pronged test to

govern the admission of such evidence:

1. The evidence of the other crime must be admissible as relevant to a material issue;

A-0852-18 28 2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[127 N.J. at 338 (citation omitted); see also State v. Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the Cofield test).]

Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless

survive the crucible for all relevant evidence: "relevant evidence may be

excluded if its probative value is substantially outweighed by the risk of (a)

undue prejudice, confusion of issues, or misleading the jury or (b) undue delay,

waste of time, or needless presentation of cumulative evidence." State v. Lykes,

192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403). The Court has also

explained that Cofield's second prong "need not receive universal application in

[N.J.R.E.] 404(b) disputes," and therefore need not apply where it is not

relevant. State v. Williams, 190 N.J. 114, 131 (2007).

"Evidence should be barred under N.J.R.E. 403 if 'the probative value of

the evidence "is so significantly outweighed by [its] inherently inflammatory

potential as to have a probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the" issues.'" State v. Santamaria, 236 N.J.

A-0852-18 29 390, 406 (2019) (alteration in original) (quoting State v. Cole, 229 N.J. 430, 448

(2017) (additional internal citation omitted)). "Inflammatory evidence 'must be

excluded if other probative, non-inflammatory evidence exists.'" Ibid. (quoting

Green, 160 N.J. at 500). "The party urging the exclusion of evidence under

N.J.R.E. 403 retains the burden 'to convince the court that the N.J.R.E. 403

considerations should control.'" Ibid. (quoting Rosenblit v. Zimmerman, 166

N.J. 391, 410 (2001)). But see State v. Reddish, 181 N.J. 553, 608-09 (2004)

("[U]nder N.J.R.E. 404(b), the party seeking to admit other-crimes evidence

bears the burden of establishing that the probative value of the evidence is not

outweighed by its apparent prejudice.").

Before a court determines whether a prior bad act is admissible for a

particular purpose, it should first determine whether the evidence relates to a

prior bad act or whether it is intrinsic to the charged offense. State v.

Brockington, 439 N.J. Super. 311, 325 (App. Div. 2015) (quoting Rose, 206 N.J.

at 179). Evidence that is intrinsic to the charged offense, while needing to

satisfy the rules relating to relevancy and undue prejudice, "is exempt from the

strictures of Rule 404(b)[.]" Rose, 206 N.J. at 177.

Intrinsic evidence is limited to two categories: (1) evidence that "directly

proves the charged offense"; and (2) evidence that, when "performed

A-0852-18 30 contemporaneously with the charged crime," facilitates "the commission of the

charged crime." Brockington, 439 N.J. Super. at 327-28 (quoting Rose, 206 N.J.

at 180) (internal quotation marks omitted). As to the second category of intrinsic

evidence, the temporal proximity between the uncharged bad act and the

indicted crime must be contemporaneous, not simply "close in time[,]" and the

link between the same must be "meaningful." Brockington, 439 N.J. Super. at

338 (Fisher, J., dissenting) (citations omitted).

Furthermore, "other crimes evidence may be admissible if offered for any

non-propensity purpose, [including] the need 'to provide necessary background

information' about the relationships among the players as a proper purpose."

Rose, 206 N.J. at 181 (alteration in original) (emphasis omitted) (quoting United

States v. Green, 617 F.3d 233, 249 (3d Cir. 2010)). Such background evidence

is admissible "outside the framework of [N.J.R.E.] 404(b)," and when

admissible for that purpose, the evidence was subject to the probative

value/prejudice balancing test under N.J.R.E. 403, not prong four of N.J.R.E.

404(b). Id. at 177-78, 181 (quoting Green, 617 F.3d at 249). The Rose Court

further explained:

There is no need to regard [N.J.R.E.] 404(b) as containing an exhaustive list of the non-propensity purposes permitted of other crime evidence. . . . [T]here is no reason that our courts cannot allow, under

A-0852-18 31 [N.J.R.E.] 404(b), evidence to be admitted for . . . necessary background or, as otherwise stated, the need to avoid confusing the jury, non-propensity purpose.

[Ibid. (quotation omitted).]

Once N.J.R.E. 404(b) evidence is found to be admissible, "the court must

instruct the jury on the limited use of the evidence." Cofield, 127 N.J. at 340-

41. "[T]he court's instruction 'should be formulated carefully to explain

precisely the permitted and prohibited purposes of the evidence, with sufficient

reference to the factual context of the case to enable the jury to comprehend and

appreciate the fine distinction to which it is required to adhere.'" Id. at 341

(quoting State v. Stevens, 115 N.J. 289, 304 (1989)). "The underlying danger

of admitting other-crime evidence is that the jury may convict the defendant

because he is 'a "bad" person in general.'" Id. at 336 (quoting State v. Gibbons,

105 N.J. 67, 77 (1987)).

We conclude the trial court mistakenly applied its discretion in admitting

a voluminous amount of evidence of uncharged claims related to defendant

giving alcohol and marijuana to an underaged Darren and engaging in sexual

misconduct outside our state. As the court found, such evidence helped the State

demonstrate defendant's plan and intent to groom Darren, as well as the

"progression" of their inappropriate relationship. But it was not needed "to

A-0852-18 32 provide necessary background information" about the relationship, as the Court

held in Rose. 206 N.J. at 180-81. The evidence presented to support the charged

sex abuse against Darren in New Jersey served the same purpose. Thus, the

admission of the additional alleged uncharged bad acts evidence that occurred

outside New Jersey or involved minors other than Darren was not necessary.

Such evidence was inherently inflammatory as it had the probable capacity to

divert the jurors' minds from a reasonable and fair evaluation of whether

defendant was guilty of the charged offenses. Indeed, there was more than

enough probative admissible evidence available to the State, e.g., the text

messages between Darren and defendant and Darren's testimony about the abuse

that occurred in New Jersey, to prove the charged offenses.

We understand the State's contention that the uncharged, out-of-state bad

acts evidence was intrinsic evidence under Rose and admissible under an

N.J.R.E. 404(b) analysis. Charges that defendant endangered Darren's welfare

by providing him with alcohol and drugs were supported by evidence that

defendant provided him with alcohol and drugs outside of New Jersey and had

some probative value because it demonstrated defendant's plan and intent to

groom him and the progression of their inappropriate relationship.

Nevertheless, the evidence amounted to unnecessary piling on of bad acts that

A-0852-18 33 was overwhelming and likely diverted the jury's attention from the charged

offenses. In turn, the evidence had a strong tendency to cause the jury to believe

defendant had a propensity to commit crimes and compounded his lack of

decency beyond the charged offenses. Hence, the volume of other bad acts

evidence was less probative of defendant's guilt and too prejudicial to his

defense.

On remand, should the State seek to admit evidence of other bad acts

occurring outside New Jersey as intrinsic evidence, the trial court shall conduct

a Rule 104 hearing with the intent to limit such evidence to a minimum for the

reasons articulated in this opinion.

C.

Ineffective Assistance of Counsel/Opening the Door

Defendant was also indicted on two counts of second-degree official

misconduct, N.J.S.A. 2C:30-2 (counts twenty-two and twenty-three), against

Ben. According to defendant, his trial counsel improperly elicited testimony

during the cross-examination and re-cross of Ben, a State witness, about the

charges concerning him that were severed from defendant's trial and unrelated

to the charged offenses involving Darren.

A-0852-18 34 Defendant points to trial counsel's cross-examination of Ben, asking him

why he left the Middlesex County College basketball team coached by

defendant, to which Ben replied, "[defendant] made it impossible to play for

him," because of the things defendant said to and texted him. In reply to

counsel's questions about the complaints he made to the college about defendant,

Ben said he showed college officials "text messages that [defendant] sent to me

about asking to eat my ass out, offering to give me the golden shower, offering

me $1,000 to show him my balls, you know, all that type of stuff." Ben testified

that no action was taken against defendant as a result of his complaints.

Defendant claims the questioning "served no strategic purpose, [and]

irreparably prejudiced [him]" because "the [trial] court . . . permitted the State

to introduce additional evidence about Ben's allegations, and other claims, under

the 'opening-the-door' doctrine." Yet, defendant contends the court's "opening-

the-door" ruling "was erroneous, aggravated the ineffective assistance of

counsel, and provides a separate ground for reversal."

We first discuss defendant's ineffective assistance of counsel claim. To

establish a prima facie case of ineffective assistance of counsel, a defendant

"must show that counsel's performance was deficient" and that "the deficient

performance prejudiced the defense." State v. Fritz, 105 N.J. 42, 52 (1987)

A-0852-18 35 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Ineffective

assistance claims are more appropriately raised on a petition for post-conviction

relief instead of direct appeal. State v. McQuaid, 147 N.J. 464, 484 (1997).

Thus, we generally do not entertain them on direct appeal because they normally

require examination of evidence outside the trial record. State v. Preciose, 129

N.J. 451, 460 (1992). Yet, since defendant's ineffective assistance arguments

are related to the arguments in which we have rejected above, there is no need

to examine evidence outside the record for their resolution. Considering

defendant's ineffective assistance claims, we conclude they lack merit.

When reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'

will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105

N.J. at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59

(2009). "The quality of counsel's performance cannot be fairly assessed by

focusing on a handful of issues while ignoring the totality of counsel's

performance in the context of the State's evidence of defendant's guilt." State v.

Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165

A-0852-18 36 (1991)). "As a general rule, strategic miscalculations or trial mistakes are

insufficient to warrant reversal 'except in those rare instances where they are of

such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at

314-15 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42

(1991)).

Because we view defendant's questioning as trial strategy, counsel did not

provide ineffective assistance. That said, even accepting defense counsel's

strategy was unsound and his performance deficient, defendant has not

demonstrated he was prejudiced by the questioning of Ben and that a different

result would have occurred without it, because there was evidence of defendant's

guilt through Darren's testimony and numerous text messages between Darren

and defendant. Accordingly, defendant failed to demonstrate he received

ineffective assistance of counsel under the Strickland test.

On the other hand, we agree with defendant's contention that the trial court

erred in finding the defense's questioning of Ben opened the door for a full

discussion of Ben's allegations that were severed from defendant's trial

concerning Darren's allegations. The doctrine of "opening the door" is a "rule

of expanded relevancy" whereby irrelevant or inadmissible evidence may

sometimes be admitted if the "opposing party has made unfair prejudicial use of

A-0852-18 37 related evidence." State v. James, 144 N.J. 538, 554 (1996). In criminal cases,

the doctrine "operates to prevent a defendant from successfully excluding from

the prosecution's case-in-chief inadmissible evidence and then selectively

introducing pieces of this evidence for the defendant's own advantage, without

allowing the prosecution to place the evidence in its proper context." Ibid.

Nonetheless, the doctrine "has its limitations," and "evidence is still subject to

exclusion where a court finds the probative value of the otherwise inadmissible

responsive evidence 'is substantially outweighed by the risk of (a) undue

prejudice, confusion of issues, or misleading the jury . . . .'" Ibid. (quoting

N.J.R.E. 403). See also State v. Prall, 231 N.J. 567, 583 (2018) ("[E]ven if

defense counsel did 'open the door' . . . the probative value of that testimony

would nevertheless need to outweigh its apparent prejudice to be admissible.").

Thus, "[t]he doctrine of opening the door can be used only to prevent prejudice;

it cannot be subverted into a rule for injection of prejudice." James, 144 N.J. at

562 (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)).

The court mistakenly applied its discretion by permitting Ben to testify

and identify text messages about defendant's conduct towards him regarding

drug use, sex acts, allowing defendant to see his genitals, the ending of his

basketball career, and reporting defendant's conduct to law enforcement, on the

A-0852-18 38 basis that defendant opened the door. The cross-examination of Ben did not

elicit testimony related to his severed claims, nor did it benefit the defense or

undermine the State's case. Had the court scrutinized the testimony under the

lens of N.J.R.E. 403 or a Cofield analysis, it should have found the testimony

inadmissible. Any probative value of Ben's testimony––such as to rebut

defendant's suggestion that Darren's claims were fabricated––was substantially

outweighed by the prejudice to defendant due to its inflammatory nature and its

tendency to show a propensity to commit the charged offenses.

D.

Bad Acts Evidence Not Involving Darren

During the trial, the State presented evidence––not the subject of a Rule

104 hearing––of uncharged bad acts by defendant with minors other than

Darren. Defendant provided alcohol or marijuana to other travel basketball team

players during: a 2010 college trip, a 2010 Mets game, three basketball

tournaments in Orlando, Florida, two baseball games, a trip to Darren's boarding

school, other basketball tournaments, and around the time of Darren's high

school graduation. There was also testimony about defendant interacting with

Darren's friends, including a message in which defendant said one of them talked

about giving defendant oral sex. Additionally, Darren's parents testified that

A-0852-18 39 defendant was drinking with two travel team players in 2010. Defendant did not

object to the admission of the testimony, and now contends it was plain error for

trial court to allow the jury to hear it. He argues that "[t]his evidence . . . served

no legitimate purpose and was clearly capable of prejudicing [him], particularly

given the lack of appropriate jury instructions." We agree.

This testimony was not directly related to any of the charged offenses and

was not necessary to prove the charges, nor was it intrinsic to the charges.

Applying the Cofield analysis, the testimony should have been excluded under

its first prong because it was not relevant to a material issue at trial, and its

fourth prong because its prejudicial effect far outweighed the non-existent

probative value of the evidence. See 127 N.J. at 338.

Yet, even if the testimony was considered intrinsic evidence as the State

argues, it should have been excluded under N.J.R.E. 403 because the probative

value was substantially outweighed by the potential prejudice to defendant based

on the volume of evidence admitted. See Santamaria, 236 N.J. at 410 (finding

even if evidence is found to be intrinsic to the crime at issue, it is still subject to

the limits of N.J.R.E. 403). The testimony shined a negative light on defendant,

demonstrating he had a disregard for common decency, especially given the

conduct involved minors. Moreover, as noted above, there was sufficient

A-0852-18 40 evidence directly related to the charged offenses against Darren that occurred in

New Jersey, such that the testimony was not relevant nor necessary to prove

defendant guilty.

E.

Jury Instruction on How to Consider Multiple Charges

Defendant contends for the first time on appeal that given the twenty

counts the jury had to consider, the trial court failed to instruct the jury on the

Model Jury Charges (Criminal), "Criminal Final Charge" (rev. May 12, 2014).

The charge provides:

There are [(the number)] offenses charged in the indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.

[Ibid.]

Defendant also contends the court did not comply with State v. Pitts, 116

N.J. 580, 603 (1989), where the Court held that although the trial court properly

"cautioned the jurors to deliberate separately on each of the twelve counts, and

to return a judgment of conviction only if convinced that each element o f the

A-0852-18 41 individual counts had been proved beyond a reasonable doubt," it would have

been preferable, when multiple counts (twelve) are joined in a single indictment,

for the trial court to "have emphasized" to the jury its "duty to avoid any negative

or prejudicial impressions that might otherwise be created by the joinder of

several criminal charges in a single indictment." Pitts, 116 N.J. at 603.

It would have been preferable for the court to instruct the jury on the

model charge to stress the jury's duty to avoid the impression that defendant had

a propensity to commit crime due to the numerous charges. See Manney, 26

N.J. at 368 ("Multiple charges may suggest propensity for crime, and there is

the possibility that proof as to one offense will enter into the consideration of

another charge."). We, however, do not conclude plain error occurred.

We agree with the State that the trial court gave proper guidance to the

jury through the following instruction: "As you know, the defendant is charged

with other criminal offenses. The State alleges that these other offenses

constitute the basis for the charge of official misconduct. You must consider

each charge separately, based on the evidence produced in support of that

charge." Considering the jury instructions in its entirety, the jury was clearly

informed that it should consider each charge individually. See Fischer v.

Canario, 143 N.J. 235, 254 (1996) (finding no reversible error "where the

A-0852-18 42 charge, considered as a whole, adequately conveys the law and is unlikely to

confuse or mislead the jury.").

F.

Opinion and Hearsay Testimony

Defendant contends for the first time on appeal that the State elicited

improper hearsay and opinion testimony about Darren's alleged disclosures, his

parents' suspicions, and the emotional toll on their family. Thus, reversal of his

convictions is warranted.

Defendant protests the following as improper hearsay testimony:

Darren testified that he disclosed the alleged abuse to a private investigator and his lawyers in 2013, despite being "nervous" and "hesitant" to do so, because he wanted "to make sure that what had happened to me didn't happen to anyone else." . . . [His father] also testified that Darren disclosed during part of his rehab treatment in which people "share with a trusted loved one" "bad things" that happened to them while "using," stating: "he stood up and said, 'Dad, I was abused,' and he broke down crying and I held him." . . . Lastly, [his mother] testified that Darren explained his refusal to discuss [defendant] in 2012 by stating: "[Y]ou don't know what he's like. You don't know what his job really is. You don't know what he can do to you. You don't know what he can hold over you. You'll lose your job. . . . [H]e's got dirt on you."

The testimony, defendant claims, "unfairly bolstered the State's case."

Defendant says the improper testimony was exacerbated by the prosecutor's

A-0852-18 43 misconduct in emphasizing the improper hearsay testimony and making

emotional appeals to the jury at closing.

There was no plain error in the court permitting the jury to hear this

testimony. Darren's testimony about disclosing the abuse to the private

investigator and his lawyer was not hearsay because Darren was the declarant.

See N.J.R.E. 801(c). Also, his mother's statements were not hearsay because

they were not offered for their truth. Rather, they were offered to help explain

why Darren did not disclose to his mother when she confronted him. See ibid.

In contrast, his father's testimony was hearsay because it was offered to establish

defendant had sexually abused Darren. Nevertheless, we see no unjust result

considering Darren's testimony that defendant abused him and the text message

exchanges between them.

As for improper opinion testimony, defendant cites Darren's parents '

testimony that: he had an intimate and creepy relationship with Darren; they

shared their concerns about him to numerous people, including the police; he

made them feel sick and that trusting him was the "worst decision" of their lives;

and that he was "predator," and that Darren was "brave" and their "hero" for

coming forward to help "other little boys" after having spent "a third of his life"

in defendant's "grip."

A-0852-18 44 We conclude the parents' testimony about Darren and defendant's

relationship was lay opinion testimony because they had no personal knowledge

of whether Darren was actually sexually assaulted by defendant. Their belief

was not based on their perception because they never actually saw defendant

inappropriately touch Darren. See N.J.R.E. 602 ("[a] witness may testify to a

matter only if evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter."); N.J.R.E. 701 (a non-expert

witness may give testimony "in the form of opinions or inferences" as long as it

"is rationally based on the witness' perception" and "will assist in understanding

the witness' testimony or determining a fact in issue."). Additionally, their

testimony was not relevant as it did not prove defendant's guilt or innocence.

See N.J.R.E. 401 ("'Relevant evidence' means evidence having a tendency in

reason to prove or disprove any fact of consequence to the determination of the

action.").

Furthermore, there was improper lay opinion testimony explaining why

Darren delayed in disclosing the alleged sexual assault, that defendant was a

"predator," and how defendant harmed their family. The testimony was an

improper attempt to appeal to the emotions and sympathy of the jury. It

"shift[ed] the jury's attention from the evidence and produce[d] a verdict fueled

A-0852-18 45 by emotion rather than a dispassionate analysis of the evidence." State v. Black,

380 N.J. Super. 581, 595 (App. Div. 2005).

Nonetheless, as with the hearsay testimony, we see no unjust result. There

was sufficient evidence of defendant's abuse through Darren's testimony and the

text message exchanges between them.

Turning to the prosecutor's closing remarks, defendant contends they

"were inappropriate, fed into the improper opinion and hearsay testimony, and

made it more likely that the jury would be unduly affected." Defendant did not

object at trial. Therefore, plain error applies.

We only reverse a conviction where the prosecutor's misconduct is so

egregious that it deprived the defendant of a fair trial. State v. Timmendequas,

161 N.J. 515, 575 (1999). The prosecutor cannot impassion a jury or incite

emotions but is permitted to forcefully comment on the evidence that he or she

intends to prove at trial. State v. Wakefield, 190 N.J. 397, 442 (2007); State v.

Pindale, 249 N.J. Super. 266, 285 (App. Div. 1991). See also State v. Williams,

113 N.J. 393, 453 (1988) (finding that a prosecutor cannot resort to improper

appeal to the jury's emotions).

Based on our conclusion that the testimony was improper, we must

likewise conclude the prosecutor's closing remarks discussing the testimony

A-0852-18 46 were improper. Yet, because plain error applies, we find they were not so

egregious that an unjust result occurred by defendant being deprived of a fair

trial.

Although we conclude that plain error did not occur through the admission

of improper hearsay and opinion testimony and prosecutorial misconduct,

should the State seek to present similar testimony on remand and defendant

objects, the court must determine whether to allow the testimony given the

rulings expressed herein.

III.

The remaining issues on appeal concern the cumulative effect of the trial

court's errors and the imposition of an excessive sentence. There is no need to

address them considering our ruling that defendant's convictions are vacated and

that he should be allowed to move for withdrawal of his guilty pleas.

Reversed and remanded for a new trial.

A-0852-18 47