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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0365-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON MAYS,
Defendant-Appellant. _______________________
Submitted May 11, 2021 – Decided May 28, 2021
Before Judges Yannotti and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 17-01- 0032.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Michael J. Williams, Acting Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Acting Assistant Prosecutor/Special Deputy Attorney General, on the brief).
PER CURIAM Defendant was tried before a jury and found guilty on two counts of
second-degree official misconduct, in violation of N.J.S.A. 2C:30-2(a), second-
degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(2), and other offenses.
The trial court sentenced defendant to an aggregate term of sixteen years in
prison, with ten years of parole ineligibility. Defendant appeals from the
amended judgment of conviction (JOC) dated September 17, 2018. We affirm
defendant's conviction but remand for resentencing.
I.
In January 2017, a Hunterdon County grand jury returned an indictment
charging defendant, a correctional officer at Edna Mahan Correctional Facility
(EMCF) with: second-degree official misconduct by engaging in sexual conduct
with A.F., N.J.S.A. 2C:30-2(a) (count one); third-degree criminal coercion of
A.F., N.J.S.A. 2C:13-5(a)(4) (count two); fourth-degree criminal sexual contact
with A.F. by touching her intimate body part for the purpose of sexual
gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count three);
second-degree official misconduct, by engaging in sexual conduct with B.D.,
N.J.S.A. 2C:30-2(a) (count four); second-degree sexual assault, committing an
act of sexual penetration with B.D. while she was detained in prison, N.J.S.A.
2C:14-2(c)(2) (count five); second-degree official misconduct by engaging in
2 A-0365-18 sexual conduct with M.D., N.J.S.A. 2C:30-2(a) (count six); third-degree
criminal coercion of M.D., N.J.S.A. 2C:13-5(a)(4) (count seven); fourth-degree
criminal sexual contact with M.D. by having her touch his intimate body part
for the purpose of sexual gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-
2(c)(2) (count eight); second-degree official misconduct by engaging in sexual
conduct with C.L., N.J.S.A. 2C:30-2(a) (count nine); second-degree sexual
assault upon C.L. while she was detained in prison, N.J.S.A. 2C:14-2(c)(2)
(count ten); fourth-degree criminal sexual contact with C.L., N.J.S.A. 2C:14-
3(b) and N.J.S.A. 2C:14-2(c)(2) (count eleven); fourth-degree criminal sexual
contact with C.L., N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count
twelve); second-degree official misconduct by engaging in sexual conduct with
J.O., N.J.S.A. 2C:30-2(a) (count thirteen); second-degree sexual assault upon
J.O. while she was incarcerated, N.J.S.A. 2C:14-2(c)(2) (count fourteen); and
second-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) (count
fifteen). 1
By order entered on March 27, 2018, the trial judge limited defendant's
cross-examination of the alleged victims. The order stated that cross-
1 We use initials to identify the alleged victims of the sexual offenses. See R. 1:38-3(c)(12).
3 A-0365-18 examination was limited to the facts of the inmates' indictable convictions, the
dates of the offenses, the degrees of the offenses, the names of the offenses, and
the sentences imposed. Defendant was prohibited from cross-examining the
inmate witnesses as to the underlying facts of the convictions, and the
underlying reasons for any violation of probation.
We briefly summarize the evidence presented at trial. EMCF is the State's
only all-female correctional facility. EMCF houses up to 600 inmates and
employs about 340 corrections officers, eighty percent of whom are male.
Defendant began working there in March 2005.
To qualify for this position, defendant was required to pass a civil service
test, undergo a background check, and meet certain physical fitness
requirements. Defendant met these requirements and participated in training at
the Correctional Staff Training Academy (CSTA) in Sea Girt. CSTA provides
training in various areas including firearms, physical fitness, the New Jersey
criminal code, and ethics. Participants are instructed to avoid undue familiarity
with inmates.
When defendant began his employment at EMCF, he was given an
orientation list. Defendant acknowledged receipt of this list in writing. The list
included the prohibition against undue familiarity with inmates and stated that
4 A-0365-18 employees should not share personal information with inmates, or have any
personal relationships with them, including sexual contact. Defendant also had
training pursuant to the federal Prison Rape Elimination Act of 2003 (PREA),
34 U.S.C. §§ 30301-09, which also covered prohibitions on sexual conduct
between inmates and corrections officers.
Lieutenant Hector Smith, the shift commander at EMCF, described the
layout of the facility, which has several cottages, including Alpha and Bravo
cottage ("A" and "B" cottage, respectively). Smith explained that there are no
security cameras in "A" and "B" cottage, and there are no cameras in the inmates'
cells. In "A" cottage, there is a beauty room and an ice room. Corrections
officers are required to keep track of the number of inmates by regularly
performing counts.
Smith also described the inmate disciplinary process. He said officers
have the discretion to issue oral warnings or written charges to inmates for minor
or "spot" infractions. More serious violations of the prison rules, including
fighting and assaults, are written on a blue sheet. These violations may result
in placement away from the general prison population.
Inmates are provided with the facility's code of conduct, which precludes,
among other things, inmates from having personal relationships with corrections
5 A-0365-18 officers, including sexual contact. Inmates are required to report violations of
this policy. If an inmate reports sexual contact by a corrections officer, the
inmate is removed from her area and taken for a medical assessment. The inmate
is placed in protective custody while the allegation is investigated. An inmate
who falsely reports undue familiarity with an officer is subject to discipline.
A.F. testified that she had been incarcerated at EMCF on two occasions
for drug offenses, shoplifting, and violations of the conditions of the intensive
supervision program. She knew defendant as an officer while she was housed
in "A" cottage. She said defendant began to tell her she was pretty, and then
asked to see the intimate parts of her body during counts.
According to A.F., defendant's actions became physical when he caught
her stealing food from the kitchen. He pointed to the "blue sheet" and asked
what she was going to do for him. She was concerned a disciplinary violation
would result in the loss of privileges and delay her release. Defendant told her
to be undressed when he arrived for count. She complied. On another occasion,
defendant arrived in her cell. She said he licked her neck and touched her
breasts.
B.D. testified that in July 2016, she was an inmate at EMCF, where she
was serving a sentence for burglary. She has prior convictions for fraud,
6 A-0365-18 weapons, forgery, and possession of a controlled dangerous substance (CDS).
She also has been sentenced to probation. B.D. said she was housed in "A"
cottage at EMCF, and defendant was one of the corrections officers assigned to
the cottage. She thought defendant was a "nice looking man" and "persistently"
"came onto" him by flirting with him and trying to "look cute."
B.D. testified that around July 4, 2016, defendant showed her a condom
and suggested that they go to the beauty room together during an inmate count.
B.D. said she wanted to remain in her room, but defendant was afraid they would
get caught and she agreed to go to the beauty room. Once there, they had sexual
intercourse. According to B.D., defendant bent her over a chair and entered her
from behind while she looked out the window to see if anyone was coming.
They were interrupted when B.D. saw a Sergeant outside walking toward the
front of the building. B.D. quickly pulled up her pants and ran to her room, and
defendant returned to his office.
Approximately three months later, B.D. met with detectives from the
prosecutor's office. She initially denied having sexual relations with defendant
because she was frightened, and she did not want defendant or herself to get in
trouble. Later that same day, B.D. revealed that she had sexual intercourse with
7 A-0365-18 defendant once. She said she did not reveal more because she wanted to keep
things "short" and did not want to get involved.
After she learned she would have to testify at trial in this case, B.D. told
the prosecutors she also had performed oral sex on defendant in the officers'
bathroom after he came in her room for count. B.D. said that she approached
defendant when he came into her room for a count. He told her, "not here," and
they went into the bathroom, where she performed oral sex on defendant.
Thereafter, defendant quickly left the bathroom. He handed B.D. some
napkins and told her to make it look as if she was cleaning. She also told
prosecutors that on another occasion in July 2016, she removed her clothes and
sat naked on her bed, at defendant's request. B.D. described defendant's penis,
indicating that it was lighter colored at the tip and darker toward his body. She
was shown a photograph of the defendant's penis and testified that it looked like
defendant's genitals.
C.L. testified that from March through August 2016, she was incarcerated
at EMCF. She was serving a four-year sentence for attempting to obtain a CDS
by fraud and possession of a CDS. She was housed in "A" cottage for a few
months, and she saw defendant a couple of times per week during the morning
or afternoon.
8 A-0365-18 She said she first became uncomfortable when defendant began making
certain comments to her, such as "hey sexy." She stated that she did not report
the comments because she did not want to get in trouble. She also believed her
word would not be believed over the word of a corrections officer.
C.L. further testified that at times, while she was in her cell early in the
morning during inmate count, defendant would touch her on her buttocks and
vagina. She also complied with defendant's request that she touch his penis over
his clothes. C.L. stated that she did so because she did not want defendant to
become angry, and she was coming up for parole in August 2016.
C.L. stated that eventually, defendant told her he wanted to meet her in
the beauty room during inmate counts when no one else was around. She
testified that defendant was adamant about being in the beauty room because
that room had a window which faces toward the main entrance of the building
and he could see if anyone was coming.
C.L. testified that at some point, she went with defendant to the beauty
room. Defendant had a condom. She pulled down her pants and underwear and
they had sexual intercourse. They stopped because someone was approaching
the outside entrance. C.L. ran back to her cell. She told three of her close
friends, inmates J.D., A.F., and C.G., about the incident.
9 A-0365-18 Later, C.L. was released to a halfway house. Law enforcement officers
visited her there and questioned her about defendant. She testified that initially,
she did not mention having sexual intercourse with defendant because she was
afraid she would be sent back to prison. However, the investigators returned
approximately one week later, and she told them she had not been completely
truthful. She said that she and defendant had sexual intercourse.
M.D. testified that she was incarcerated at EMCF for two years because
of her conviction for theft and possession of a CDS. She had been sentenced to
probation, but she violated probation and was sentenced to a term of
incarceration, which she served at EMCF. M.D. acknowledged that she had
prior convictions for possession of a CDS, criminal trespass, shoplifting, and
theft.
M.D. testified that in 2016, she had been housed in "A" cottage, where
defendant worked on Sundays and Mondays. She explained that in July or
August 2016, defendant became flirtatious and expressed an interest in having
sex with her. She said defendant would ask to see her naked when she got out
of the shower, and he would pull her covers off when she was sleeping.
M.D. further testified that on one occasion, defendant came to her cell and
had her stroke his penis. At another time, defendant asked her to remove her
10 A-0365-18 panties. She complied because she felt she did not have any choice in the matter.
She said the tip of defendant's penis was lightly colored and the bottom part was
darker in color. She was shown the photographs of defendant's penis. She said
the penis shown in the photos was consistent with her recollection.
M.D. also stated that about one week later, defendant called her into his
office and said he was not going to do her any special favors such as smuggling
in items from outside the prison or overlooking disciplinary infractions. She
asked defendant why he would risk ruining his career by engaging in sexual
activity with inmates when he could have sex outside the prison.
According to M.D., defendant acknowledged that risk and indicated he
could go to jail or face a lawsuit. M.D. said defendant continued to tell her that
he wanted to see her vagina and ask her to "go on all fours." She testified that
she did not initially report these incidents because she was afraid it would delay
her release date.
J.O. testified that she had been an inmate at EMCF since July 2009. She
had been convicted of aggravated manslaughter, possession of a weapon for an
unlawful purpose, and other offenses. She had been sentenced to twenty-five
years of incarceration and required to serve eighty-five percent of her sentence
11 A-0365-18 before becoming eligible for parole. She also had a prior conviction for
possession of a CDS.
J.O. stated that defendant began to flirt with her by making comments
about her body. She said she welcomed his attention. She testified that in April
2016, she and defendant went to the ice room at "A" cottage, while another
inmate acted as a lookout. J.O. said she performed oral sex upon defendant. She
described his penis as large and circumcised. She stated that defendant's penis
was hooked-shaped, like a banana.
J.O. stated that during this incident, defendant began to curse at her for
her choice of a lookout. According to defendant, that inmate had a reputation
for being a "snitch." J.O. stated that after she finished performing oral sex upon
defendant, she and defendant left the room separately. She returned to her cell.
The inmate who had acted as the lookout also testified and corroborated parts of
J.O.'s testimony.
Defendant testified on his own behalf. He denied having any sexual
contact with the five inmates who testified against him. He said they had all
fabricated the allegations as retaliation because he had disciplined them. He
stated that he caught M.D. with food she was not allowed to have, and she was
angry because he made her discard it. Defendant admitted he never "wrote up"
12 A-0365-18 the accusers, but insisted they were out to get him. He claimed he heard them
say they were going to "get" him.
Defendant's girlfriend testified for the defense. She was asked to describe
defendant's penis. She said it was not shaped like a banana and did not have a
hook-like shape. She acknowledged that the tip was lighter in color than the
bottom part. She was shown photographs and said they accurately depicted
defendant's penis and its overall coloration.
Defendant also presented testimony from an inmate, who said she saw
several inmates, including A.F. and M.D., crushing and snorting pills at EMCF.
The inmate also testified that she heard A.F. tell M.D. she was going to "set"
defendant "up" because he caught her several times with food that she had
stolen.
Another inmate testified that there were no disciplinary problems at "A"
cottage until B.D., M.D., and C.L. arrived there and began crushing and snorting
pills. The inmate said she heard B.D., M.D., and C.L. angrily state they were
going to "get" defendant. She told defendant what she heard and warned him to
be careful.
The jury found defendant guilty on counts four (official misconduct by
engaging in sexual conduct with B.D.); five (sexual assault upon B.D.); nine
13 A-0365-18 (official misconduct by engaging in sexual conduct with C.L.); twelve (sexual
contact with C.L.); and fifteen (engaging in a pattern of official misconduct).
The jury found defendant not guilty of the other charges. Thereafter, the judge
denied defendant's motion for a directed verdict or, in the alternative, a new trial.
At sentencing, the judge merged count five with count four, and count
twelve with count nine. On counts four and nine, the judge sentenced defendant
to eight-year terms of incarceration, each with a five-year period of parole
ineligibility. The judge required defendant to serve the sentences consecutively.
The judge also sentenced defendant to a concurrent eight-year term of
incarceration on count fifteen. The judge entered the JOC dated August 6, 2018,
and an amended JOC dated September 17, 2018. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO PREJUDICIAL JOINDER; THE TRIAL COURT SHOULD HAVE SUA SPONTE ORDERED A SEVERANCE OF THE COUNTS ALLEGED AS TO THE SEPARATE VICTIMS. (Not Raised Below).
(a) Prong 1 – The evidence was not relevant to a material issue.
(b) Prong 4 – The State would have failed to establish that the probative value of the evidence is not outweighed by its apparent prejudice.
14 A-0365-18 POINT II THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S DENIAL OF DEFENDANT'S RIGHT TO PRESENT RELEVANT EVIDENCE DESIGNED TO ATTACK THE CREDIBILITY OF THE WITNESSES.
POINT III THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR JUDGMENTS OF ACQUITTAL [NOTWITHSTANDING THE VERDICT] OR NEW TRIAL.
POINT IV THE SENTENCE OF EIGHT YEARS IN PRISON, [WITH] FIVE YEARS [OF] PAROLE INELIGIBILITY ON COUNTS 4 AND 9, RESULTING IN SIXTEEN YEARS IN PRISON WITH TEN YEARS OF PAROLE INELIGIBLITY WAS EXCESSIVE BECAUSE THE COURT ERRED IN APPLYING AGGRAVATING SENTENCING FACTORS ONE AND TWO.
II.
As noted, defendant argues that the trial court erred by failing to sever sua
sponte the counts pertaining to the different alleged victims. He contends he
was denied a fair trial by the joinder of the counts for trial.
A. Invited Error.
We note initially the State contends that defendant's failure to seek
severance of the counts involving the five separate alleged victims was
apparently part of the defense strategy. The State notes that, at trial, defendant
15 A-0365-18 claimed that the alleged victims had conspired against him in retaliation for his
disciplinary actions. According to the State, the joint trial of the charges
involving the five alleged victims furthered the defense strategy of showing that
they engaged in a conspiracy to frame him. The State therefore argues that
defendant's argument regarding severance should be barred under the invited
error doctrine.
"Under that settled principle of law, trial errors that 'were induced,
encouraged or acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal. . . .'" State v. Bailey, 231 N.J. 474, 490 (2018)
(alteration in original) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). "In
other words, if a party has 'invited' the error, he [or she] is barred from raising
an objection for the first time on appeal." A.R., 213 N.J. at 561 (citing N.J. Div.
of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 342 (2010)). "The doctrine
prevents litigants from 'playing fast and loose' with, or otherwise manipulating,
the judicial process." Bailey, 231 N.J. at 490 (quoting State v. Jenkins, 178 N.J.
347, 359 (2004)).
Here, defense counsel did not file a motion for severance of the counts
involving the separate alleged victims and did not object to the joinder of the
charges. However, defense counsel did not expressly seek a joint trial on all
16 A-0365-18 charges in the indictment. Furthermore, there is nothing in the record indicating
that defense counsel wanted joinder of the charges as a matter of strategy.
The record shows that defense counsel did, in fact, claim that the alleged
victims conspired to frame defendant. Counsel may have pursued that defense
because the charges were joined in the indictment and he believed a severance
motion would not be successful. This is not the sort of "gamesmanship-driven
scenario to which the invited error doctrine is traditionally applied." Ibid.
Therefore, we will address defendant's argument that the trial court should
have, on its own motion, severed the counts involving the five alleged victims.
B. Joinder of the Charges for Trial.
Rule 3:7-6 permits the State to charge multiple offenses in the same
indictment in a separate count for each offense. Under the rule, joinder is
permissible if the offenses "are of the same or similar character or are based on
the same act or transaction or on [two] or more acts or transactions connected
together or constituting parts of a common scheme or plan." Ibid.
Rule 3:7-6 further provides that "[r]elief from prejudicial joinder shall be
afforded as provided by [Rule] 3:15-2." Rule 3:15-2(b) states that if "it appears
that a defendant . . . is prejudiced by a permissible or mandatory joinder of
offenses or of defendants in an indictment or accusation the court may order an
17 A-0365-18 election or separate trials of counts, grant a severance of defendants, or direct
other appropriate relief."
Joinder of offenses is favored but interests in economy and efficiency do
not override a defendant's right to a fair trial. State v. Sterling, 215 N.J. 65, 72-
73 (2013). The test for determining prejudice is "whether, assuming the charges
were tried separately, evidence of the offenses sought to be severed would be
admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." Id. at
73 (alteration in original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341
(1996)).
Evidence of other crimes, wrongs, or acts "may be admitted . . . 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). Such evidence is admissible if it is relevant to
prove a fact genuinely in dispute "and the evidence is necessary as proof of the
disputed issue." State v. Darby, 174 N.J. 509, 518 (2002) (quoting State v.
Hernandez, 170 N.J. 106, 118-19 (2001)).
Furthermore, "[i]f the evidence would be admissible at both trials, then
the trial court may consolidate the charges because 'a defendant will not suffer
any more prejudice in a joint trial than he would in separate trials.'" Chenique-
18 A-0365-18 Puey, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App.
Div. 1983)). N.J.R.E. 404(b)(1) provides, however, that "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."
In State v. Cofield, the Court adopted a four-part test to determine the
admissibility of other-crimes evidence:
1. [t]he evidence of the other crime must be admissible as relevant to a material issue;
2. [it] must be similar in kind and reasonably close in time to the offense charged;
3. [t]he evidence of the other crime must be clear and convincing; and
4. [t]he probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. 328, 338 (1992).]
"Trial courts must apply that test on a case-by-case basis 'in order to avoid the
over-use of extrinsic evidence of other crimes or wrongs.'" State v. Green, 236
N.J. 71, 82 (2018) (quoting Cofield, 127 N.J. at 338).
On appeal, defendant argues that the evidence of the offenses sought to be
severed did not meet the first prong of the Cofield test. He asserts the evidence
19 A-0365-18 was not material to any issue in dispute because he had denied committing any
of the alleged sexual offenses. Defendant also argues that the evidence was not
necessary to show he had a motive to engage in the alleged sexual conduct. He
contends that motive would have been established by proof he committed the
alleged conduct.
Here, the other crimes evidence was relevant to prove that defendant had
engaged in similar acts with each of the alleged victims under similar
circumstances. The evidence also was relevant to show that defendant had the
opportunity to engage in sexual activity in the inmates' cells or other rooms
where he would not be seen. Thus, the evidence satisfied the first prong under
Cofield.
Defendant further argues that the other crimes evidence did not satisfy the
fourth Cofield factor. He asserts that any probative value the evidence might
have had was substantially outweighed by its undue prejudice. He contends the
State offered the evidence solely to show that he had a propensity to commit
sexual offenses. He asserts the evidence distracted the jurors and led them to
forego an independent analysis of the evidence as it pertained to the charges
against each individual victim. We disagree.
20 A-0365-18 Admission of evidence of other crimes or wrongs "requires an inquiry
distinct from the familiar balancing required under N.J.R.E. 403: the trial court
must determine only whether the probative value of such evidence is outweighed
by its potential for undue prejudice, not whether it is substantially outweighed
by that potential as in the application of Rule 403." Id. at 83 (internal citations
omitted) (citing State v. Barden, 195 N.J. 375, 389 (2008)). "[I]f other less
prejudicial evidence may be presented to establish the same issue, the balance
in the weighing process will tip in favor of exclusion." Id. at 84 (alteration in
original) (quoting State v. Rose, 206 N.J. 141, 161 (2011)).
Here, the balance weighed in favor of admission of the evidence of the
other alleged crimes. As noted, the evidence was relevant to show that defendant
had the opportunity to engage in such activity with inmates and it was feasible
for him to do so while he was working. The evidence was prejudicial to the
defense, but not unduly so, and there was no less prejudicial evidence to
establish these facts.
Moreover, the judge instructed the jury that defendant had been charged
with various offenses involving five separate victims. The judge told the jury it
must consider the allegations regarding these victims separately. The judge
stated:
21 A-0365-18 You should not consider any of the proofs that were presented during this trial to prove defendant guilty of the counts against one of the victims as proof against the other victim as they must be considered separately.
You may not conclude that just because you find defendant committed the offenses against one of the victims that he must be guilty of committing the offenses against the other victim. The State must separately prove beyond a reasonable doubt the offenses alleged against each independent victim. And therefore you must consider the offense against each victim separately and independently.
We must assume the jury followed the judge's instruction. State v. Burns,
192 N.J. 312, 335 (2007). As noted previously, the jury found defendant guilty
only on the counts involving two of the alleged victims and found defendant not
guilty on ten counts involving the other three inmates. The jury's verdict
indicates that the jury followed the court's instructions and considered the
charges as to each alleged victim separately.
III.
Defendant next argues he was denied the right to a fair trial because the
trial judge precluded him from presenting relevant evidence challenging the
credibility of the five alleged victims who testified against him. He argues that
the judge should have permitted him to introduce evidence that these witnesses
had violated prison rules by using and distributing drugs, which he claims was
22 A-0365-18 relevant to show that the victims fabricated the allegations to avoid disciplinary
actions. Defendant further argues that the judge erred by precluding him from
challenging the credibility of the alleged victims by questioning them about their
criminal records.
A trial court's evidentiary ruling is reviewed under an abuse of discretion
standard. State v. Prall, 231 N.J. 567, 580 (2018) (citing Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). An appellate court
will not set aside an evidentiary ruling unless it appears that the trial court made
a "clear error of judgment." Ibid. (quoting State v. J.A.C., 210 N.J. 281, 295
(2012)).
At the time of the trial of this case, N.J.R.E. 608 precluded the use of
specific instances of conduct to challenge the credibility of a witness. State v.
Scott, 229 N.J. 469, 481 (2017). The rule "bar[red] not only the use of extrinsic
evidence but also cross-examination into specific instances of misconduct." Id.
at 488 (Rabner, C.J., concurring). 2
2 N.J.R.E. 608 was amended effective July 2020 in response to the Court's decision in Scott. See Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 608 (2021). We apply the version of the rule in effect when the case was tried.
23 A-0365-18 The rule "permit[ted] evidence in the form of opinion, reputation, or a
prior criminal conviction to attack a witness's credibility by establishing the
witness's character for untruthfulness." State v. Guenther, 181 N.J. 129, 140
(2004). However, "in limited circumstances and under very strict controls a
defendant has the right to show that a victim-witness has made a prior false
criminal accusation for the purpose of challenging that witness's credibility."
Id. at 154.
In this case, the judge granted the State's motion to limit cross-
examination of the victim-witnesses. The judge noted that the State was not
seeking to prevent admission of the alleged victims' prior convictions, but rather,
to limit the defenses from questioning these witnesses on the conduct that
resulted in their convictions.
The judge stated that N.J.R.E. 609 only permits evidence of prior
indictable offenses that are the subject of valid convictions, but not juvenile or
disorderly persons matters. The judge also stated that while a violation of
probation cannot be used to impeach a witness, the sentence imposed may be
used to impeach the witness pursuant to State v. Jenkins, 299 N.J. Super. 61, 75
(App. Div. 1997).
24 A-0365-18 The judge then conducted a N.J.R.E. 403 analysis and found that, as so
limited, the alleged victims' prior convictions were relevant, probative, and not
unduly prejudicial to the State. The judge noted that evidence the alleged
victims were incarcerated at EMCF or another correctional facility due to a
criminal conviction would necessarily be brought out at trial.
The judge also noted that Guenther applied in limited circumstances
where the witness made a prior false accusation similar in nature to the crime
with which defendant had been charged. The judge stated that except for that
limited exception, the evidence rules did not permit the admission of specific
instances of prior bad conduct for the purpose of challenging the credibility of
a witness.
The judge therefore found the evidence rules only permit proof of the
convictions themselves, not the specific underlying acts that resulted in the
convictions, to be admitted for the purpose of challenging the credibility of the
witnesses. The judge found that to delve into those details would be unduly
prejudicial to the State, confuse the jury, and effectively create minitrials.
We are convinced the judge's decision was consistent with the evidence
rules in effect at the time this matter was tried. The judge correctly found that
a witness's prior convictions could be used to challenge the credibility of the
25 A-0365-18 witness, but the defense could not inquire into the facts underlying those
convictions.
We note that the judge allowed defense counsel to claim the alleged
victims had conspired against him in retaliation for taking disciplinary actions
against them. The judge also permitted defendant to assert that the alleged
victims' claims were an attempt to preempt the imposition of disciplinary
sanctions. In addition, the judge instructed the jury that:
[C.L.] smoked cigarettes and met with [J.D.] in her room in violation of [EMCF] rules. The defense also introduced evidence that [A.F.], [B.D.] and [M.D.] smoked cigarettes, used drugs and traded pills in violation of [EMCF] rules. The evidence has been offered to show bias by these witnesses against the defendant. You should consider this evidence along with all the other evidence in the case in determining whether or not the state has proven beyond a reasonable doubt that defendant is the person who committed the crimes alleged in the indictment.
Thus, the record does not support defendant's contention that the trial
judge denied him of his right to a fair trial by limiting him from presenting
evidence regarding the alleged victims' other crimes and bad acts. The record
shows the judge considered the evidence, excluded cumulative or inadmissible
evidence, and allowed the defense to present relevant evidence pertaining to the
defense's claim that the witnesses had conspired and fabricated the claims
26 A-0365-18 against defendant. The judge's decision to limit cross-examination of the inmate
witnesses was not a mistaken exercise of discretion.
IV.
Defendant also argues that the trial judge erred in denying his motion for
a judgment of acquittal, or in the alternative, for a new trial. He argues that the
State's evidence was insufficient to support the jury's verdict.
Defendant asserts that the State relied almost entirely upon the testimony
and credibility of the alleged victims. He contends there was no corroborating
evidence to support their claims, and there was no physical evidence to support
the allegations. He argues that the convictions represent a miscarriage of justice.
Rule 3:20-1 provides that the trial court may grant a motion for a new trial
"in the interest of justice. . . . unless, having given due regard to the opportunity
of the jury to pass upon the credibility of the witnesses, it clearly and
convincingly appears that there was a manifest denial of justice under the law."
The decision is committed to the sound discretion of the trial judge, and an
appellate court "should interfere with the exercise of that discretion only when
'a clear abuse has been shown.'" State v. Van Ness, 450 N.J. Super. 470, 495-
96 (App. Div. 2017) (quoting State v. Brooks, 366 N.J. Super. 447, 454 (App.
Div. 2004)).
27 A-0365-18 On appeal, our review "is limited to a determination of whether the trial
court could reasonably have reached the findings it made based on 'sufficient
credible evidence . . . in the record.'" Id. at 496 (alteration in original) (quoting
Brooks, 366 N.J. Super. at 454). We must defer to the trial judge's "feel for the
case" because the judge "had the opportunity to 'observe and hear the witnesses
as they testified.'" Ibid. (quoting Brooks, 366 N.J. Super. at 454).
We reject defendant's argument that the judge erred by denying his motion
for a judgment of acquittal or a new trial. We affirm the denial of defendant's
motion substantially for the reasons stated by the trial judge in her written
opinion addressing that motion.
In the opinion, the judge carefully reviewed the evidence pertaining to
counts four, five, nine, twelve, and fifteen, and noted the elements of each
offense. The judge applied the correct standard for ruling on a motion under
Rule 3:20-1 for judgment notwithstanding the verdict or for a new trial.
The judge found that the State had presented sufficient evidence to support
the jury's finding that defendant committed the offenses beyond a reasonable
doubt. The record supports the judge's analysis and conclusion. Defendant's
contention that the State presented insufficient evidence to support the jury's
verdict lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
28 A-0365-18 V.
Defendant also argues that his sentence is excessive. He contends the
judge erred in her findings on the aggravating and mitigating factors. He also
contends the judge improperly imposed the same sentences for the offenses
involving B.D. and C.L.
Here, the judge found the following aggravating factors applied to counts
four, five, nine, and twelve: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant
will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law). In addition, the judge found that
the following additional aggravating factors applied to counts nine and twelve,
which involved defendant's sexual activity with C.L.: one, N.J.S.A. 2C:44-
1(a)(1) (nature and circumstances of the offense); and two, N.J.S.A. 2C:44-
1(a)(2) (gravity and seriousness of the harm to the victim).
The judge noted that, based on her testimony at trial, C.L. was particularly
vulnerable and incapable of exercising normal mental or physical resistance.
She had been approaching her release date and feared her release would be
delayed if she did not yield to defendant's sexual advances. The judge also noted
that C.L. was young, had an extensive history of drug abuse, and was new to the
prison system, which defendant was probably aware of.
29 A-0365-18 The judge explained that while aggravating factors one and two applied
to C.L., they did not apply to B.D. The judge noted that defendant also had
preyed upon B.D.'s vulnerabilities. However, B.D. had more experience in the
prison system than C.L, and she did not have the same problems as C.L.
The judge further found mitigating factor seven applied. N.J.S.A. 2C:44-
1(b)(7) (defendant has no history of criminal delinquency or activity). The judge
found that no other mitigating factors applied. The judge concluded that the
aggravating factors substantially outweighed the mitigating factors and that a
substantial period of incarceration was necessary.
The judge also reviewed the factors for consecutive and concurrent
sentences pursuant to State v. Yarbough, 100 N.J. 627 (1985), and determined
that consecutive sentences should be imposed as to defendant's official
misconduct because there were separate victims of these offenses, and the
crimes occurred at separate times.
On appeal, defendant argues that the judge erred by imposing the same
sentences on counts four and nine, even though the judge found aggravating
factors one and two applied to C.L., but not B.D. He contends the judge failed
to differentiate between B.D. and C.L., the facts underlying the offenses, or how
the aggravating factors applied to one offense and not the other.
30 A-0365-18 Defendant further argues that the offenses were not committed in a
particularly heinous, cruel, or depraved manner. He asserts there was nothing
about the nature of the offenses that would warrant imposition of a sentence
above the statutory minimum of five years for a second-degree offense. N.J.S.A.
2C:44-1(a)(1).
These contentions have no support in the record. As noted above, the
judge thoroughly explained why aggravating factors one and two applied to the
offenses involving C.L. and why these aggravating factors did not apply to the
offenses involving B.D. Moreover, the judge fully explained why she was
imposing the same sentence on counts four and nine.
We reject defendant's contention that the judge abused her discretion by
imposing an eight-year term of incarceration, each with five years of parole
ineligibility, on counts four and nine. We also reject defendant's contention that
the judge erred by treating elements of the offenses as aggravating factors for
sentencing.
Defendant asserts that aggravating factors one and two are subsumed
within his conviction for official misconduct as to C.L. The judge properly
considered both the nature and circumstances of the offense, and the gravity and
seriousness of the harm to the victim in determining the sentence that should be
31 A-0365-18 imposed on count nine. This was not impermissible double-counting of the
elements of the offense, as defendant claims.
We are constrained, however, to remand for resentencing. While this
appeal was pending, our Supreme Court issued its opinion in State v. Torres,
N.J. , (2021), and addressed the standards for imposing consecutive
sentences. The Court stated that Yarbough requires the trial court to place on
the record a statement of reasons for imposing consecutive sentences, which
should address the overall fairness of the sentence. Id. at (slip op. at 26)
(quoting State v. Miller, 108 N.J. 112, 122 (1987)).
The Court held that "[a]n explicit statement, explaining the overall
fairness of a sentence imposed on a defendant for multiple offenses in a single
proceeding or in multiple sentencing proceedings, is essential to a proper
Yarbough sentencing assessment." Id. at (slip op. at 27) (citing Miller, 108
N.J. at 122). As noted, in this case, the trial court imposed consecutive
sentences. We therefore remand for resentencing in light of Torres.
Affirmed in part, reversed in part, and remanded for resentencing in
accordance with this opinion. We do not retain jurisdiction.
32 A-0365-18