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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4076-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDGAR A. MEJIA,

     Defendant-Appellant.
___________________________

                   Submitted September 26, 2018 – Decided March 27, 2019

                   Before Judges Koblitz and Ostrer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 15-03-
                   0525.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stephen W. Kirsch, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Mary R. Juliano,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Edgar A. Mejia appeals from his conviction, after a jury trial,

of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and third-degree

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

sentenced defendant to a thirty-year prison term, subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2. As plain error, defendant contends the jury instruction

on aggravated sexual assault was not properly tailored, and the prosecutor made

improper comments in her summation. Having reviewed defendant's arguments

in light of the record and applicable principles of law, we affirm. However, we

remand for the court to provide the required reasons for a financial penalty it

imposed.

        The indictment charged defendant with a non-specific "act of sexual

penetration with A.H." (Anna),1 who was seven years old. The State's theory at

trial was that defendant digitally penetrated Anna's vagina and touched her

buttocks, although there was evidence that defendant also penetrated the anus.

                                         I.

        Anna testified at the trial, but the State's case centered on the testimony

of the sexual assault nurse examiner (SANE nurse) who examined Anna the day




1
    We utilize pseudonyms to protect the victim's privacy.
                                                                           A-4076-16T4
                                         2
of the assault, and Anna's video-recorded statement to a detective three days

later.

         The assault occurred in the bedroom of a family friend and babysitter,

B.R. (Brianna). Brianna had asked Anna to go to the bedroom so she would not

hear the adults' conversation in the living room. Anna took with her defendant's

tablet computer, which he had earlier permitted her to use. Soon afterwards,

Brianna retreated to the bedroom's walk-in closet, to take a private phone call.

Defendant entered the bedroom a few minutes after that. Not feeling well, he

obtained Brianna's permission to rest on the bed.

         Brianna was on the phone for almost a half hour.         During the call,

according to Anna, defendant put his hand down her pants and underneath her

underwear. He first touched her buttocks and then her vagina. In her interview

with the detective, Anna seemed to indicate that defendant inserted his finger in

the anus and touched the vagina, but her statements were not crystal clear, even

though she used diagrams and an anatomical doll to help. Referring to the

"butt," she said defendant's hand went "like almost to the hole," "on the hole,

but a little bit through the hole," and his finger "felt like it went in." Asked if

defendant's finger went inside her vagina ("private"), Anna said, "it just felt like




                                                                            A-4076-16T4
                                         3
he was touching it." Anna said it hurt because of defendant's long fingernails.

She asked him to stop and he did.

      Later that evening, Anna reported the assault to her mother, B.M. (Beth).

Beth testified that Anna said defendant touched her in her "hole" while pointing

toward her vaginal area. Anna complained that it hurt when she urinated. Beth

took Anna to the hospital.

      The SANE nurse said she was told Anna had complained only of vaginal

pain. The nurse observed redness and swelling on Anna's hymenal area, around

the clitoral head, and part of the external vagina. The areas looked "brighter and

more inflamed" than normal. Anna cried out in pain when the nurse attempted

to swab the hymenal ring area, so the nurse stopped. The nurse said that an

infection or any form of irritation could cause such inflammation, but she did

not opine what caused it in Anna's case. Nonetheless, the State in summation

referred to the inflammation as circumstantial evidence of the assault.

      The State also elicited testimony that defendant kept his fingernails long.

Even a character witness for the defense – defendant's landlord and occasional

employer for handyman jobs – recalled that he observed that defendant kept one

fingernail long and used it as a tool. The State also elicited that a couple days




                                                                          A-4076-16T4
                                        4
after the assault, defendant asked Brianna to say that she was in the bedroom

with him and Anna, and Brianna said that she would not lie for defendant.

      Testifying in his own defense, defendant denied that he touched Anna.

The defense highlighted the differences between Anna's recorded statement to

the detective, which was relatively detailed, and her trial testimony, in which

she stated only that defendant touched her butt.

      The evidence also varied regarding the extent to which the doors to the

bedroom and the walk-in closet were open. According to Anna and one of the

other adults in the apartment who testified at trial, the bedroom door was almost

closed or closed and locked. Defendant asserted it was open. The defense

preemptively elicited that defendant had a prior federal conviction for which he

received time served and twelve months probation.

                                       II.

      Defendant presents the following points for our consideration:

            POINT I

            IN A CASE WHERE THE EVIDENCE REGARDING
            SEXUAL PENETRATION WAS EXTREMELY
            LIMITED AND CONTRADICTORY, AND, IN FACT,
            MOST OF THE RECITATIONS OF THE INCIDENT
            BY THE ALLEGED VICTIM REFERRED TO
            TOUCHING RATHER THAN PENETRATION, THE
            JURY INSTRUCTION WAS NOT PROPERLY
            TAILORED TO DISTINGUISH BETWEEN FIRST-

                                                                         A-4076-16T4
                                       5
            DEGREE AGGRAVATED SEXUAL ASSAULT --
            WHICH CARRIES A DRACONIAN MANDATORY
            MINIMUM OF 25 YEARS IN PRISON WITHOUT
            PAROLE -- AND SECOND-DEGREE SEXUAL
            ASSAULT, WHICH CAN BE PUNISHED BY NO
            MORE THAN A TEN-YEAR/85% ORDINARY
            PRISON TERM. (NOT RAISED BELOW).

            POINT II

            THE ASSISTANT PROSECUTOR'S SUMMATION
            IMPROPERLY ACCUSED THE DEFENDANT OF
            USING A SPANISH-LANGUAGE INTERPRETER
            TO BUY TIME TO ANSWER UNTRUTHFULLY -- A
            NOXIOUS ARGUMENT THAT SHOULD NOT BE
            PERMITTED TO TIP THE BALANCE IN A
            CRIMINAL TRIAL WHERE CREDIBILITY IS AT
            STAKE. (NOT RAISED BELOW).

            POINT III

            A REMAND IS REQUIRED FOR A STATEMENT OF
            REASONS REGARDING ONE OF THE IMPOSED
            PENALTIES.

                                       III.

                                       A.

      We first consider defendant's challenge to the court's instruction on the

aggravated sexual assault charge. Defendant notes that the judge informed the

jury that vaginal intercourse required "penetration of the . . . space between the

labia majora or outer lips of the vulva." Defendant contends the judge should

have been similarly detailed in his description of anal penetration, to avoid the

                                                                          A-4076-16T4
                                        6
possibility that the jury would conclude that merely touching the buttocks

constituted anal penetration.

      We are unpersuaded. In its instruction on aggravated sexual assault, the

court instructed the jury as follows:

                   In order to convict the defendant of this charge
            the State must prove the following elements beyond a
            reasonable doubt: First, that defendant committed an
            act of sexual penetration with another person; two, that
            defendant acted knowingly; and, three, that at the time
            of the penetration the victim was less than 13 years old.

                   The first element that the State must prove
            beyond a reasonable doubt is that defendant committed
            an act of sexual penetration with [Anna]. According to
            the law, vaginal intercourse between persons or
            insertion of the hand, finger, or object into the anus or
            vagina by the defendant constitutes sexual penetration.

                   The definition of vaginal intercourse is
            penetration of the vagina or of the space between the
            labia majora or outer lips of the vulva. Any amount of
            insertion, however slight, constitutes penetration; that
            is, the depth of insertion is not relevant.

      Defendant raised no objection to the charge when the judge proposed it

during the charging conference, or after he delivered it to the jury. See R. 1:7-

2 (stating that "[e]xcept as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain

error), no party may urge as error any portion of the charge to the jury or

omissions therefrom unless objections are made thereto before the jury retires


                                                                         A-4076-16T4
                                        7
to consider its verdict").   Therefore, we shall not reverse unless the court

committed an error "of such a nature as to have been clearly capable of

producing an unjust result." R. 2:10-2.

      In the context of jury instructions, plain error is a "legal impropriety . . .

prejudicially affecting the substantial rights of the defendant and sufficiently

grievous to . . . convince the court that of itself the error possessed a clear

capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969);

accord State v. Montalvo, 229 N.J. 300, 320-21 (2017). Not any possibility of

an unjust result will suffice as plain error, only one "sufficient to raise a

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

not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

      Here, we discern no error, let alone plain error. We consider whether a

jury charge as a whole was accurate and provides "a comprehensible explanation

of the questions that the jury must determine . . . ." State v. Singleton, 211 N.J.

157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "No

party is entitled to have the jury charged in his or her own words . . . ." State v.

Jordan, 147 N.J. 409, 422 (1997). A court should tailor its instruction if "the

statement to relevant law, when divorced from the facts, [would be] potentially




                                                                            A-4076-16T4
                                          8
confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000).

We discern no possibility of confusion here.

      The judge explained to the jury that both vaginal and anal penetration

required "insertion, however slight" and "the depth of insertion is not relevant."

The plain language of the instruction referred to "insertion of the hand, finger

or object into the anus or vagina." The instruction did not refer to the buttocks,

nor cause the jury to be confused that inserting a finger between the buttocks is

equivalent to inserting a finger into the anus. Notably, Anna did not use the

word "buttocks" or "anus." She referred generally to the buttocks region as a

"butt" and referred to the anus as a "hole," as she did the vagina. Furthermore,

the court's subsequent instruction of the lesser-included offense of sexual

assault, which did not require penetration, highlighted for the jury the difference

between touching the buttocks, and penetrating the anus.

      We recognize that the court's instruction could have been improved. First,

there was no point in mentioning vaginal intercourse or its explanation,

inasmuch as it was not charged. Secondly, the court, without explanation,

modified the model charge by moving the sentence about the nature of required

insertion, so it followed the explanation of vaginal intercourse, instead of the




                                                                           A-4076-16T4
                                        9
phrase in which the concept of insertion as penetration is first introduced. 2 Yet,

reversal is not warranted where "instructions were not so much incorrect as they

were capable of being improved." State v. Delibero, 149 N.J. 90, 106 (1997).

      Also significant in our plain error analysis is that the State did not seek

conviction of aggravated sexual assault based on anal penetration.

Notwithstanding Anna's statements in her recorded interview, the prosecutor

contended in summation that defendant committed lesser-included sexual

assault by non-penetration touching of the buttocks, and aggravated sexual

assault by penetration of the vagina. She argued:

            The defendant was 52 years old when he did this to
            [Anna], when he chose to reach under her leggings,
            under her underwear, and touch her butt with his hand,
            and she felt it and his hand was moving.

                  Well, that, ladies and gentlemen, in and of itself
            is sexual assault, but he did more. Because not only did
            he touch her butt, he reached his fingers under and
            around, he touched her vagina and he penetrated her.
            And you know that because [Anna] said that's what
            happened. [Anna] demonstrated that's what happened.
            And [Anna] is corroborated by the SANE exam and all

2
   "According to the law, [choose appropriate] vaginal intercourse, cunnilingus,
fellatio or anal intercourse between persons or insertion of the hand, finger or
object into the anus or vagina, either by defendant or by another person upon
defendant's instruction, constitut[es] 'sexual penetration.' Any amount of
insertion, however slight, constitutes penetration, that is, the depth of insertion
is not relevant." Model Jury Charge (Criminal), "Aggravated Sexual Assault-
Victim Less Than 13 (N.J.S.A. 2C:14-2a(1))" (rev. Jan. 24, 2005).
                                                                           A-4076-16T4
                                       10
            the other evidence. And that, ladies and gentlemen, that
            is aggravated sexual assault.

      The judge reaffirmed the State's position in the course of his charge on

endangering the welfare of a child, specifically, his reference to the nature of

the sexual conduct alleged. The judge stated:

                  The second element that the State must prove
            beyond a reasonable doubt is that defendant knowingly
            engaged in sexual conduct. Here the State alleges that
            the sexual conduct committed by defendant consisted
            of touching [Anna]'s buttocks and/or putting his finger
            or fingers in her vagina.

      In sum, we do not believe the failure to tailor the jury charge led the jury

to a result it otherwise might not have reached.

                                       B.

      We turn to defendant's claim of prosecutorial misconduct in summation.

Defendant was born in Guatemala and spoke Spanish as his "primary language."

Nevertheless, he chose to testify in English, with a stand-by interpreter. At the

outset of his testimony, defense counsel advised him that the interpreter would

assist him if he did not understand a question.

      During direct examination, defendant asked counsel to repeat some

questions, but did not ask the interpreter to help. During cross-examination,

defendant asked for repetition of some questions, and interpretation of others –


                                                                          A-4076-16T4
                                      11
some on topics peripheral to the key issues in the case, some not. 3 In summation,

the prosecutor attacked defendant's credibility by arguing that defendant availed

himself of the interpreter to "buy time" in answering certain questions. She

stated,

            Now, listen, I know my voice was off on Thursday but
            he didn't say he couldn't hear me. He needed my words
            interpreted. Did he? Or was he just buying time to
            think of what to say? Was he stalling? What about his
            demeanor told you that was what he was doing?

      Defendant contends these remarks were objectionable, as they invited the

jury to punish defendant for availing himself of an interpreter, which he had

every right to do. We agree the remarks were inappropriate on that basis.

      A prosecutor may generally argue in summation that a defendant, as a

witness, did not testify credibly. State v. Bauman, 298 N.J. Super. 176, 208

(App. Div. 1999). However, a prosecutor must exercise caution in challenging

a defendant's credibility based on his exercise of a fundamental procedural right.

For example, a prosecutor may not generically accuse a defendant of tailoring



3
   For example, he asked for an interpretation of the question about his
immigration to the United States, "And you lived [in Guatemala] until what
year?" He also asked for the interpreter's assistance when the prosecutor asked,
"And [Anna's] focus, when you came in [to the bedroom] was on the tablet,
correct?" Defendant also apparently had difficulty understanding the word
"ports" as used to refer to medical devices, and the word "sideburns."
                                                                          A-4076-16T4
                                       12
his testimony, by pointing to the defendant's presence and ability to listen at

trial, because defendant has a fundamental right to be present. State v. Daniels,

182 N.J. 80, 97, 101 (2004). However, a prosecutor may assert specific tailoring

if based on evidence other than defendant's presence. Id. at 99.

      A defendant who cannot speak or understand English has a constitutional

right to the assistance of an interpreter at trial. State v. Guzman, 313 N.J. Super.

363, 377-78 (App. Div. 1998). That right pertains not only to the ability to

understand what others are saying, but also to vindicate the right to testify on

one's own behalf. As with the right to be present, a prosecutor may not "invert"

that right by "permitting that prosecutor to punish the defendant for exercising

that which the Constitution guarantees." Daniels, 182 N.J. at 98. The prosecutor

did not point to specific evidence demonstrating that the defendant's resort to

the interpreter was calculated to buy time, or was based on any reason other than

a lack of understanding English.

      As defendant did not object and prompt the court to provide a curative

instruction, he must establish plain error, the standard for which we have already

described. "[N]ot every prosecutorial misstatement warrants a new trial." State

v. Feal, 194 N.J. 293, 312 (2008). A prosecutor's improper comments must be




                                                                            A-4076-16T4
                                        13
"so egregious that [they] deprived the defendant of a fair trial." State v. Frost,

158 N.J. 76, 83 (1999).

      They were not so here. In Feal, 194 N.J. at 313, the Supreme Court

concluded that the prosecutor's "fleeting references to defendant's presence in

the courtroom" did not lead "the jury to a result it otherwise would not have

reached," because the defendant's credibility was largely challenged on other

grounds. We reach the same conclusion in this case. The prosecutor's comment

was fleeting. Furthermore, defendant's credibility was mainly challenged on

other grounds. He lied about his fingernails. He asked Brianna to say she was

in the bedroom when she was not. Defendant had a criminal conviction. And,

his testimony was at odds with Anna's, whose allegation of vaginal touching was

apparently corroborated by the SANE nurse's physical findings.

      In sum, we reject defendant's contention that he is entitled to a new trial

based on the prosecutor's comments in summation.

                                       C.

      The State concedes that the trial court omitted its reasons for imposing the

Sex Crime Victim Treatment Fund penalty. See State v. Bolvito, 217 N.J. 221,

235 (2014). We remand for the court to reconsider and provide reasons for the

penalty imposed.


                                                                          A-4076-16T4
                                       14
     Affirmed as to the conviction and sentence, except remanded as to the Sex

Crime Victim Treatment Fund penalty.




                                                                      A-4076-16T4
                                    15
