                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-3162-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

G.L.,

     Defendant-Appellant,
____________________________

                   Submitted January 13, 2020 – Decided April 30, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No.12-05-0354.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele Erica Friedman, Assistant Deputy
                   Public Defender, of counsel and on the briefs).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
        Following a jury trial, defendant was convicted of first-degree aggravated

sexual assault of a child less than thirteen years old, N.J.S.A. 2C:14-2(a)(1);

second-degree sexual assault of a child less than thirteen years old, N.J.S.A.

2C:14-2(b); first-degree aggravated sexual assault of a child between the ages

of thirteen and sixteen years old, N.J.S.A. 2C:14-2(a); second-degree sexual

assault of a child between the ages of thirteen and sixteen years old, N.J.S.A.

2C:14-2(c)(4); and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a). After merger, defendant was sentenced to two consecutive fifteen-

year prison terms subject to the No Early Release Act (NERA), NJSA 2C:43-

7.2, concurrent to a seven-year prison term.

        On appeal, defendant raises the following contentions:

              POINT I

              THE INTRODUCTION OF EXPERT TESTIMONY
              REGARDING        CHILD        SEXUAL
              ACCOMMODATION SYNDROME WAS BASED
              ON UNRELIABLE SCIENCE. THE JURY'S
              EXPOSURE TO THIS UNDULY PREJUDICIAL
              EVIDENCE WARRANTS REVERSAL OF G.L.'S
              CONVICTIONS.

              A. As Determined Pursuant to the Supreme Court's
              State v. J.L.G.[1] Remand Order, Evidence Concerning
              Child Sexual Assault Accommodation Syndrome Fails
              the Reliability Requirement Under N.J.R.E. 702.

1
    State v. J.L.G., 234 N.J. 265 (2018).
                                                                          A-3162-16T1
                                            2
B. The CSAAS Testimony Should Have Also Been
Excluded Under N.J.R.E. 702 Because the Jury Did Not
Need Expert Testimony to Explain S.L.'s Proffered
Explanation for Her Delayed Disclosure.

POINT II

THE TRIAL COURT ERRED IN GRANTING THE
STATE'S MOTION TO ADMIT EVIDENCE OF S.L.'S
DISCLOSURE OF THE ALLEGED ABUSE TO B.W.
UNDER THE FRESH COMPLAINT DOCTRINE,
BECAUSE IT WAS NEITHER SPONTANEOUS NOR
VOLUNTARY.

POINT III

THE      PERVASIVE          PROSECUTORIAL
MISCONDUCT    CONTAINED       WITHIN       THE
STATE'S OPENING REMARKS RESULTED IN A
MANIFEST       INJUSTICE.           FURTHER
COMPOUNDING THE PREJUDICE STEMMING
FROM THE PROSECUTORIAL ERRORS, THE
COURT ISSUED AN INADEQUATE AND
ERRONEOUS INSTRUCTION IN RESPONSE TO
THAT MISCONDUCT. (Partially Raised Below).

A. The State Committed Prosecutorial Misconduct by
Appealing to the Jury's Emotions and Vouching for
B.W.'s Credibility. Because this Prosecutorial
Misconduct Deprived G. L. of a Fair Trial and
Constituted a Manifest Injustice, the Court Committed
Reversible Error in Refusing to Grant a Mistrial.

i. The Prosecutor Impermissibly Portrayed S.L. as a
"Defenseless" Victim, Whose Father Abandoned His
Paternal Duties Towards Her, and Instead, Used Her as
a "Sex Object."


                                                        A-3162-16T1
                         3
ii. The Prosecutor Impermissibly Vouched for B.W.'s
Credibility as a Witness.

iii. The Court Committed Reversible Error When
Refusing to Grant the Defense's Motion for a Mistrial
Based on the Prosecutorial Misconduct.

B. The Court Erroneously Instructed the Jury Only to
Disregard the Prosecutor's Improper Remarks Until All
the Evidence Had Been Presented.

POINT IV

THE COURT COMMITTED REVERSIBLE ERROR
WHEN PERMITTING THE STATE TO INTRODUCE
A PHOTOGRAPH OF S.L. WHEN SHE WAS 13
YEARS OLD.

POINT V

THE SENTENCING COURT PENALIZED G.L. FOR
ACTS EXCEEDING THE CRIMES FOR WHICH HE
WAS CONVICTED, AND FAILED TO CONSIDER
NERA'S REAL-TIME CONSEQUENCES.       IN
ADDITION, THE ORAL SENTENCE DOES NOT
MATCH THE JUDGMENT OF CONVICTION.

A. The Court's Finding of Aggravating Factor One
Improperly Penalized G.L. for Conduct Beyond That
for Which He was Convicted.

B. G.L.'s Sentence Should be Reduced Given NERA's
Real-Time Consequences.

C. The Oral Sentence Does Not Comport with the
Judgment of Conviction.



                                                        A-3162-16T1
                         4
      For the following reasons, we affirm the convictions and sentences, but

without objection from the State, remand for correction of defendant's judgment

of conviction (JOC) to comport with the sentences ordered by the trial judge.

                                       I.

      Relevant to defendant's contentions on appeal, we discuss the trial

testimony, pretrial motions, the State's opening statement, and sentencing.

      Trial Testimony

      Trial was conducted by Judge Marybel Mercado-Ramirez from July 14 to

29, 2016.    S.L. (Sofia),2 then almost nineteen years old, testified she was

repeatedly sexually assaulted by defendant, her father, over the course of two

years beginning in 2009 when she was twelve years old. Sofia and her twin

brother, Steve, were seven-years old when they moved to New Jersey from

Jamaica in 2004. Upon arrival, they lived with defendant, their stepmother, and

their younger sister.3

      At some point after September 2009, Sofia, her brother, and defendant

moved away from her stepmother and sister after defendant and her stepmother


2
  We use pseudonyms to protect the privacy of the child victim, family
members, and witnesses. R. 1:38-3(c)(9).
3
   Sofia's testimony refers to her younger sister as both a half-sister and a
stepsister. Due to this uncertainty, we refer to her as "sister."
                                                                        A-3162-16T1
                                       5
divorced. In their new two-bedroom attic space, Sofia and Steve shared a

bedroom. Sofia testified while she was sleeping one night, she awoke to find

defendant on top of her. She claimed defendant grabbed her hands and had

sexual intercourse with her. She stated defendant continued to have intercourse

with her about every week or every other week at that home and other multiple

residences they lived in until Sofia was at least fourteen years old.

      Sofia recalled when she was thirteen years old, they moved to her

godfather D.W.'s (Dean's) one-bedroom apartment.           Dean's girlfriend B.W.

(Barb) would visit often and formed a bond with Sofia. Barb testified she would

purchase "important stuff" for Sofia "like ladies['] napkins . . . deodorant, [and]

underwear[,]" and she became a mother figure for Sofia, who called her "mom."

      Sometime in November 2011, when Sofia was fourteen years old, and

after her family moved out of Dean's home, she disclosed to Barb that she was

being "molested" by defendant. Sofia testified she told Barb about the abuse

because she "was tired of it" and "finally found someone [she] trusted." While

she had known Barb for a while and had a "bond" with her previously, Sofia said

she waited until that day because "even though we had a bond, it wasn't a strong

. . . bond and I wasn't sure like if I could really trust her with the situation, and

I wasn't sure what was going to happen." When asked if there was any reason


                                                                             A-3162-16T1
                                         6
why she never told anyone sooner, Sofia replied on direct examination

"[b]ecause [defendant] threatened me and also because I didn't really trust

anyone to tell." Sofia testified she believed defendant would kill her if she told

anyone because she had once found a gun in his pants pocket when she was

twelve. Her cross-examination was unremarkable.

      Barb testified she did not call the police immediately because she was in

shock and did not know what to do. Later that day, Barb told Dean and her

stepmother who advised her to call the police, but she did not because she was

still in shock. Barb's stepmother instead notified police about the allegations

the following day.

      After the police were notified, Sofia was taken to a hospital, but she was

not given a forensic exam because it had been longer than five days since the

last alleged sexual assault occurred. After leaving the hospital, Sofia was taken

to the Passaic County Prosecutor's Office (PCPO), where she provided a

statement to Detective Michael Boone, who testified for the State.

      About five days after taking Sofia's statements, Boone located defendant

at his ex-wife's home. He was not arrested but was taken to the PCPO for

questioning. Defendant initially denied knowing why he was brought in for

questioning and denied touching Sofia inappropriately when confronted with her


                                                                          A-3162-16T1
                                        7
accusations. However, after being pressed on the matter defendant confessed to

having sex with Sofia and accused her of seducing him. Defendant's video

recorded statement included the following colloquy:

            DET. BOONE: I'm telling you that your daughter said
            that you had sex with her, that you put your penis in her
            vagina, you had sexual intercourse with your daughter.
            That's what she's saying, okay? In a nutshell, that's
            what she said. Is your daughter lying? Now, she's not
            lying, is she? No?

            [Defendant]: She not lying.

                  ....

            [Defendant]: The reason why it happened, she's the one
            who made me do it. That I know.

                  ....

            [Defendant]: She come in my room when I'm sleeping.
            And she come in my room. The first time she do it, I
            ask her what she doing. I said what you doing?

                  ....

            [Defendant]: [Sofia] [g]ot into my bed and she back up
            on me and I ask her what she doing. She say nothing.
            So the first time, I – I get up and I asked her – and I
            asked her how – why did you do that? She said nothing.

      Defendant told Boone he did not have intercourse with Sofia that night,

but she came to his bed another time kicking and touching him. He stated she

would rub on him but denied having intercourse with her.                Defendant's

                                                                            A-3162-16T1
                                       8
equivocation continued by admitting he had intercourse with Sofia, then

claiming he only digitally penetrated her. He denied ever threatening Sofia with

violence if she told anyone about the abuse.

      The State also presented the testimony of Dr. Anthony D'Urso, a clinical

psychologist, as an expert regarding Child Sexual Assault Accommodation

Syndrome (CSAAS). Dr. D'Urso did not know the specific facts of the case, nor

had he ever met Sofia, stating "the purpose of [his] testimony [was] to provide

education and backdrop about child sexual assault – and to lay a context for

understanding the differences that children who are assaulted have say relative

to adults."

      Dr. D'Urso gave an overview of the five elements of CSAAS. Regarding

the first element, "secrecy," Dr. D'Urso testified that typically children delay

disclosure of abuse and do not tell anyone after they've been violated for the

first time. Regarding the second element, "helplessness," he stated it relates to

personal and emotional factors which inhibit a child victim from disclosing their

abuse. He stated the third element "entrapment and accommodation," really

encompassed "coercion" as well, and that children can feel trapped in the cycle

of abuse if it started off as less sinister acts such as tickling or wrestling, and

that the victim's relationship with the abuser can also serve to entrap them. The


                                                                           A-3162-16T1
                                        9
fourth element, "delayed disclosure," meant that children are not always ready

to tell everyone everything about the abuse within a short period of time, and

the whole story usually comes out over a longer period of time. According to

the doctor, the fifth element "retraction" related to children feeling unsupported

after their disclosure which sometimes causes them to recant or minimize their

initial allegations.

         Dr. D'Urso concluded by stating CSAAS was not a diagnostic tool and

could not be applied to determine if sexual assault did in fact occur.

         Defendant neither testified nor presented any witnesses on his behalf.

         Pretrial Motions

         Before trial, Judge Mercado-Ramirez held a hearing to address the State's

motion to admit into evidence as a fresh complaint, Barb's testimony regarding

Sofia's disclosure of the alleged abuse, and a photo depicting a thirteen-year-old

Sofia.

         Barb testified to her mother-figure relationship with Sofia, and her

accusations against her father. She stated:

               I was in the living room – in the kitchen and [Sofia]
               said to me, mom, I have something to tell you, but I
               cannot tell you until I'm age [eighteen].




                                                                           A-3162-16T1
                                         10
              So, you know, as a mother I try to press her and I said,
              [w]hats [w]rong? She said, no, she can't tell me until
              she's [eighteen] years old.

Barb recalled telling Sofia, "[i]f you don't tell me, I'm not going to be your

friend; I'm not going to talk to you no more[,]" before she proceeded to the

bedroom. Sofia followed her into the bedroom "a minute or two" afterward.

Barb then stated:

              So I stepped off and I went into my bedroom. I was
              laying on the bed. She came in there. So as a mother,
              I said, [Sofia], I said, what is it? You know, try to –
              what it is? Please tell me what it is. So I said to her,
              [Sofia], [Dean] molesting you? [Dean] is my fiancé.
              She said, Mom, no. I asked her, [Sofia], is your father
              molesting you? She never answer. I ask her a second
              time. She never answer. I asked her a third time and
              she said, [y]es, Mom, and she went down on my
              shoulder and we both started to cry.

         Barb testified she asked Sofia why she did not tell her about the abuse

sooner, and Sofia told her that she just couldn't tell her. Barb stated she inquired

about Dean and defendant molesting Sofia because they were the men Sofia was

around at the time, and Sofia had "changed." She testified that Sofia's stomach

and breasts looked big and that she might be pregnant, Sofia developed fast, and

Barb had been around kids that have been molested and that "they develop so

fast."



                                                                            A-3162-16T1
                                        11
      In allowing Barb's testimony as a fresh complaint, the judge issued a

written decision reasoning that Sofia's disclosure was not due to "coercive

questioning but questioning fashioned to elicit the truth from a child who was

scared and 'reluctant to disclose the abuse.'" Citing State v. Bethune, 121 N.J.

137 (1990), the judge noted at the time of disclosure Sofia was still living with

defendant and was completely dependent on him. The judge wrote:

            [A]lthough the complete disclosure was not totally
            volunteered but the product of some questioning, for
            the same reasons, I find that it makes [Sofia's]
            disclosure no less voluntary or spontaneous. "More
            latitude" is appropriate in "the type and extent of
            questioning" which may precede the fresh complaint of
            a juvenile victim. [State v. ]Hill[, 121 N.J. 150 (1990)].
            Statements made after general non-coercive
            questioning still possess "the necessary spontaneity and
            voluntariness" to qualify as fresh complaints. [Ibid.]

            At arriving at this decision[,] this [c]ourt finds [Barb]
            credible. She appeared in court well-groomed and
            appropriately dressed for a court hearing. [Barb] was
            well spoken, knowledgeable, direct and clear in her
            responses . . . .

      At another pretrial hearing, the State moved to admit into evidence a

photograph of thirteen-year-old Sofia. Defendant opposed, arguing the photo's

purpose was intended to inflame the jury's passion. The State rebutted that it

was a "simple photo" and would allow the jury to see what Sofia looked like at

the time of the sexual assault "especially in light of the fact that [Sofia] is now

                                                                           A-3162-16T1
                                       12
an adult and looks very different." Sofia was almost nineteen years old at the

time of trial. In admitting the photo, the judge stated: "There's nothing in the

photograph that is intended to immediately evoke emotion from a jury, but it

simply shows approximately . . . what she looked like at the time of the alleged

sexual abuse . . . ."

      The State's Opening

      The prosecutor began her opening, remarking:

             [Sofia] was a motherless child, a child who came from
             Jamaica with her twin brother at the tender age of
             seven. She was a motherless child. She depended on
             her father. He was her only parent and full caretaker,
             and she loved him very much, until one day things
             changed, until one day her father divorced his wife,
             until one day after moved her and her brother to a new
             home, until one day her father began to have sex with
             her.

             Ladies and gentlemen, her absent mother and his absent
             wife gave him access, opportunity, and ability to
             destroy his own daughter's innocence and turn her into
             – [.]

      The defense objected before the prosecutor could complete her sentence,

resulting in the jury's removal from the courtroom in order to resolve defendant's

application for mistrial. Defendant argued a mistrial was warranted because the

comments that Sofia was "motherless" and had an "absent mother" were

inappropriate for an opening and being used to "inflame the passions of [the]

                                                                          A-3162-16T1
                                       13
jury." The State responded the remarks were based on facts to be adduced from

testimony and supported their prosecution theme.

      Judge Mercado-Ramirez denied defendant's motion stating: "I understand

. . . there's certain terminology [the prosecutor] is using, but she is giving the

theory of her case to the jury. She is providing the victim's background in th is

case. Again, all of that is going to be brought out before the jury . . . through

admissible evidence." The judge also asked defendant to refrain from making

any further objections until the State concluded its opening.

      When the jury returned, the prosecutor proceeded, stating:

            Her absent mother and his absent wife gave him the
            opportunity, access, and the ability to destroy his own
            daughter's innocence and turn her into a sexual object
            to satisfy his sexual urges whenever he wanted sex.

            Ladies and gentlemen, [Sofia] was a motherless child.
            She was his daughter. He was supposed to protect her
            and nurture her, not violate her. But she was
            vulnerable. She was defenseless.

      The judge then halted the proceedings and asked counsel for both parties

to approach the bench for a side bar. The judge explained to the prosecutor that

her remarks were more suited for closing, she needed to lay out what she

intended to prove, "what the elements of the offense are, what happened, and

save those conclusory arguments for closing."


                                                                          A-3162-16T1
                                       14
      The prosecutor then continued:

            Ladies and gentlemen, imagine her reality. That was
            [Sofia's] reality.

            You will hear testimony that [defendant] sexually
            assaulted his daughter from the time she was [twelve]
            years old until she was [fourteen] years of age and that
            he did so repeatedly and in multiple residences in this
            very town of Paterson.

            And who could [Sofia] turn to? Who could protect her?
            All she had was her twin brother, a child just like her,
            and her father, the very person who was violating her.
            That's who she had, until one day [Sofia] met [Barb]. a
            sweet and loving woman who [Sofia] immediately
            gravitated to, a woman who [Sofia] began to call,
            "Mom[.]"

            Thank goodness for [Barb]. She'll testify at this trial
            and she will tell you that on Wednesday, November 9th,
            2011, [Sofia] confided in her and told her that her father
            had been sexually abusing her. She will tell you she
            did not know what to do. And you will learn that the
            very next day [Barb's] stepmother contacted the police
            and an investigation ensued.

      At the end of the prosecutor's opening, defense counsel approached the

sidebar, again moving for mistrial. The jury was again removed from the

courtroom. Defense counsel argued that considering the judge's initial concerns

about the prosecutor's statements, a mistrial was even more appropriate because

of the prosecutor's additional statements that the absence of Sofia's mother and

step-mother gave defendant the opportunity to turn Sofia into a sexual object to

                                                                         A-3162-16T1
                                       15
satisfy defendant's desires, that defendant was supposed to protect and nurture

Sofia, that Sofia was vulnerable and defenseless, and that Barb was a sweet and

loving woman.

      Again, the judge refused to declare a mistrial.            Though finding the

comments were "clearly better suited for closing arguments," the judge found

they did not "rise to the level where a defendant is prejudiced in that if some of

these comments are untrue and not brought out during that State's case or borne

out by the evidence, defense counsel will certainly have the opportunity to point

them out to the jury at the end of the case." The judge instead opted for a

curative instruction.

      When the jury returned to the courtroom, the judge gave the following

instruction:

               I just want to note for you that certain statements were
               made by the State during opening remarks in relation to
               [Sofia's] innocence, vulnerability, sexual objectify [sic]
               and having – objectivity and not having any – or the
               lack of protection.

               I just want to note and advise you that the comments
               are more appropriate for closing remarks and not
               appropriate at this juncture in the case because the
               witnesses have yet to testify, so, as a result of that, I'm
               going to instruct you to please disregard them until all
               the evidence has been presented.



                                                                             A-3162-16T1
                                          16
       At the trial's conclusion, the jury returned guilty verdicts on two counts

of aggravated sexual assault upon Sofia by committing sexual penetration when

she was less than thirteen years old and committing sexual penetration when she

was between thirteen and sixteen years old and being related by blood; and two

counts of sexual assault upon Sofia by committing sexual contact when she was

less than thirteen years old and committing sexual penetration when she was

between thirteen and sixteen years old; and one count of endangering the welfare

of a child.

      Sentencing

      On December 16, 2016, Judge Mercado-Ramirez merged the sexual

assault convictions with the aggravated sexual assault convictions. The JOC

reflects defendant's convictions for sexual assault of a victim under thirteen

years old and aggravated sexual assault of a victim between the ages of thirteen

and sixteen were merged into his conviction for aggravated sexual assault of a

victim under thirteen years old. It shows defendant was given sentences for

aggravated sexual assault of a victim under thirteen years old, sexual assault of

a person between thirteen and fifteen years old and endangering the welfare of

a child.




                                                                         A-3162-16T1
                                      17
        The JOC does not comport with the sentence the judge placed on the

record for the two aggravated sexual assault counts and the endangerment count.

Despite defense counsel asking the judge to sentence defendant to concurrent

sentences considering the consequences of NERA, on the first aggravated sexual

assault charge the judge sentenced defendant to fifteen years imprisonment

pursuant to NERA, Megan's Law,4 parole supervision for life and five years of

parole supervision to be served separate and apart from his parole supervision

once released from custody. On the second aggravated sexual assault charge the

judge sentenced defendant to fifteen years imprisonment, to run consecutively

with the first charge, Megan's Law, parole supervision for life, as well as five

years parole supervision separate and apart to run consecutively with the first

charge. On the child endangerment charge the judge sentenced defendant to

seven years imprisonment to run concurrent with his thirty-year sentence under

aggravated sexual assault charges.

        In discussing the aggravating and mitigating factors, the judge stated:

              The [c]ourt finds that . . . [a]ggravating [f]actor [one]5
              does in fact apply to this case. . . . I would note that it
              . . . goes directly to [c]ounts of [aggravated sexual
              assault (two), sexual assault] . . . only. Case law is

4
    N.J.S.A. 2C:7-1 to -23
5
    N.J.S.A. 2C:44-1(a)(1) – the nature and circumstances of the offense.
                                                                            A-3162-16T1
                                         18
            clear. It indicates that the first instance of sexual
            assault is sufficient, and here sexual abuse by way of
            penetration . . . is sufficient to satisfy the elements of
            the offense and anything thereafter can be considered
            as part of this aggravating factor.

            There's no doubt that there was sexual abuse that
            happened at least form the age of . . . [twelve] until right
            before she turned [thirteen]. There's no dispute that
            each act of sexual penetration of a young child by her
            father is in fact heinous, and cruel, and depraved.

      The judge went on to detail the abuse, noting that it began when Sofia was

twelve, when she was in the safety of her own bed. The judge noted defendant

violated Sofia's trust, that he is a big muscular man, and that at the time of the

abuse he was in his thirties. The judge also took into consideration aggravating

factors two, three, four, and nine, and mitigating factor seven. N.J.S.A. 2C:44-

1(a)(2) (gravity of harm inflicted on victim); -1(a)(3) (the risk of re-offense); -

1(a)(4) (breach of a fiduciary responsibility); -1(a)(9) (need to deter defendant

and others from violating the law); and -1(b)(7) (lack of criminal record).

                                        II.

      We first address defendant's contention in Point I, raised for the first time

on appeal, that based upon the Supreme Court's ruling in J.L.G., approximately

two years after his trial, his conviction should be overturned because the judge

erred in admitting CSAAS testimony. In particular, defendant contends the


                                                                           A-3162-16T1
                                       19
CSAAS testimony violated his due process rights to a fair trial because it was

unnecessary to explain Sofia's delayed disclosure of abuse and it unfairly

bolstered the State's case. He also maintains the testimony did not qualify as

expert testimony under N.J.R.E. 702. 6

      Because no objection was made at trial to the CSAAS testimony, we

review defendant's challenge for plain error. Under the plain error standard, we

disregard any error or omission by the trial court "unless it is of such a nature as

to have been clearly capable of producing an unjust result . . . ." R. 2:10-2; see

also State v. Santamaria, 236 N.J. 390, 404 (2019). "To warrant reversal[,] . . .

an error at trial must be 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.

Funderburg, 225 N.J. 66, 79 (2016) (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

      During the pendency of this appeal, our Supreme Court decided J.L.G.,

where it partially overturned its holding in State v. J.Q., 130 N.J. 554 (1993).

The Court held:



6
  N.J.R.E. 702 provides: "If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise."
                                                                             A-3162-16T1
                                        20
            Based on what is known today, it is no longer possible
            to conclude that CSAAS has a sufficiently reliable basis
            in science to be the subject of expert testimony. We
            find continued scientific support for only one aspect of
            the theory — delayed disclosure — because scientists
            generally accept that a significant percentage of
            children delay reporting sexual abuse.

            We therefore hold that expert testimony about CSAAS
            in general, and its component behaviors other than
            delayed disclosure, may no longer be admitted at
            criminal trials. Evidence about delayed disclosure can
            be presented if it satisfies all parts of the applicable
            evidence rule. In particular, the State must show that
            the evidence is beyond the understanding of the average
            juror.

            [J.L.G., 234 N.J. at 272 (citing N.J.R.E. 702).]

The Court recognized the limited admissibility of CSAAS expert testimony "will

turn on the facts of each case." Ibid. Thus, when a victim gives "straightforward

reasons about why [he or] she delayed reporting abuse, the jury [does] not need

help from an expert to evaluate [his or] her explanation. However, if a child

cannot offer a rational explanation, expert testimony may help the jury

understand the witness's behavior."     Ibid.   Although J.L.G. permits expert

testimony about delayed disclosure or causes for delayed disclosure; "[t]he

testimony should not stray from explaining that delayed disclosure commonly

occurs among victims of child sexual abuse, and offering a basis for that

conclusion." Id. at 303. The Court recognized CSAAS evidence was still

                                                                         A-3162-16T1
                                      21
considered reliable and accepted by the scientific community to explain delayed

disclosure of sexual abuse and could therefore be used to explain that aspect of

a case in the absence of other evidence. Id. at 272. The Court further explained:

            Whether a victim's delayed disclosure is beyond the ken
            of the average juror will depend on the facts of the case.
            If a child witness cannot offer a rational explanation for
            the delay in disclosing abuse -- which may happen
            during the pretrial investigative phase or on the witness
            stand -- expert evidence may be admitted to help the
            jury understand the child's behavior.

            [Id. at 305 (internal citation omitted).]

The Court also added that "a young teenager's explanation from the witness

stand may fall within the ken of the average juror and might be assessed without

expert testimony."      Ibid.     Admissibility of CSAAS expert testimony,

nevertheless, may be harmless "in light of the overwhelming evidence o f [a]

defendant's guilt." Id. at 306.

      Because the J.L.G. Court did not opine with respect to whether its holding

applied retroactively, we directly addressed the issue in State v. G.E.P., 458 N.J.

Super. 436 (2019). There, we held the J.L.G. holding "should be given at least

pipeline retroactivity," rendering it applicable to all cases in which the parties

have not exhausted all avenues of direct review when the Court issued its

opinion in J.L.G. G.E.P. 458 N.J. Super. at 448. Because defendant's appeal


                                                                           A-3162-16T1
                                       22
was pending during the Court's consideration of J.L.G., its holding applies to

defendant's appeal.

      Applying J.L.G., we conclude the admission of Dr. D'Urso's CSAAS

testimony was harmless and does not warrant vacation of defendant's conviction.

Sofia was nearly nineteen years old when she testified, thus it was not necessary

for Dr. D'Urso to testify to the CSAAS element regarding delayed disclosure of

child sex abuse victims. Sofia's explanation that she delayed reporting the abuse

"[b]ecause [defendant] threatened [her] and also because [she] didn't really trust

anyone to tell," was something the average juror could understand. See State v.

Reeds, 197 N.J. 280, 290 (2009) (holding expert "testimony concerns a subject

matter beyond the ken of an average juror") (citing N.J.R.E. 702). Nonetheless,

Sofia's credibility was uncontroverted save for defendant's initial statement of

denial to investigators, which he recanted by admitting to having sex with Sofia

because she seduced him. Hence, the presentation of Dr. D'Urso's CSAAS

testimony was insufficient to raise a reasonable doubt as to whether the error led

the jury to a result it otherwise might not have reached.

                                       III.

      Defendant argues in Point II that Judge Mercado-Ramirez should not have

granted the State's request to admit, as fresh complaint evidence, Sofia's


                                                                          A-3162-16T1
                                       23
disclosure to Barb of defendant's alleged sexual abuse because the disclosure

was involuntary and coerced by Barb's pointed questions. Defendant cites to

Hill, 121 N.J. at 167, which held an allegation of sex abuse generated by a

"pointed, inquisitive, coercive interrogation [that] lack[ed] the degree of

voluntariness" is not admissible as a fresh complaint. He points to Barb's candid

testimony at the pretrial motion hearing, admitting she "press[ed]" Sofia to

disclose the sex abuse allegation which Sofia clearly indicated she did not feel

comfortable providing until she was older. According to defendant, Sofia's

disclosure to Barb casted doubt on the reliability of her trial testimony regarding

the alleged sex acts. He moreover contends admission of both Barb and Sofia's

testimony regarding the disclosure amounted to cumulative fresh complaint

evidence improperly bolstering Sofia's credibility.

      Judge Mercado-Ramirez did not abuse her discretion by allowing as a

fresh complaint, both Sofia and Barb to testify regarding Sofia's complaint. See

State v. Cope, 224 N.J. 530, 554-55 (2016) (recognizing trial judges retain broad

discretion in determining the admissibility of evidence); 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)).            Their


                                                                           A-3162-16T1
                                       24
testimony met the criteria for admission. The fresh complaint doctrine allows

the State to admit "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." State v. R.K., 220 N.J.

444, 455 (2015) (citing Hill, 121 N.J. at 163, State v. Balles, 47 N.J. 331, 338

(1966)).

      We agree with defendant there should not be a "pointed, inquisitive,

coercive interrogation" because it undermines the voluntariness of the

disclosure. Hill, 121 N.J. at 167. "The line, however, between non-coercive

questioning and coercive questioning depends on the circumstances of the

interrogation." Ibid. Therefore, the trial judge should consider the following

factors when making such a determination:

            [T]he age of the victim; the circumstances under which
            the interrogation takes place; the victim's relationship
            with the interrogator, i.e., relative, friend, professional
            counselor, or authoritarian figure; who initiated the
            discussion; the type of questions asked—whether they
            are leading and their specificity regarding the alleged
            abuser and the acts alleged.

            [Id. at 168.]

      Sofia and Barb's testimony clearly shows their relationship was friendly

and caring, and Sofia stated she finally found someone she felt she could trust


                                                                            A-3162-16T1
                                        25
with the information about being sexually assaulted.              Barb's repeated

questioning of Sofia was appropriate given their relationship and the

circumstance. Evidencing the mother-figure bond Barb had with Sofia and the

absence of targeting defendant, is that her pointed questioning to Sofia first

inquired if her own husband was a possible abuser. They both provided enough

information to explain the context of Sofia's complaint, and neither witnesses'

testimony was "excessively graphic" or more detailed than Sofia's own

testimony. See R.K., 220 N.J. at 459 (holding a fresh complaint witness's

testimony inadmissible because it was "excessively graphic" and went beyond

the scope of the victim's testimony). Additionally, any argument the fresh

complaint evidence was cumulative because both Sofia and Barb testified lacks

merit. Fresh complaint testimony is only cumulative if two or more people

testify to the victim's disclosure, not the victim and the confidante. Hill 121 N.J.

at 169-70.

                                        IV.

      In Point III, defendant argues the prosecutor committed misconduct

during opening remarks by purposefully inflaming the passions of the jury and

vouching for the credibility of Barb, which diverted the jurors from their fact-

finding function. Citing State v. W.L., 292 N.J. Super. 100, 111 (1996) and


                                                                            A-3162-16T1
                                        26
State v. Blakney, 189 N.J. 88, 96 (2006), defendant asserts the prosecutor

inflamed the jury's passions by arguing defendant breached his duty to protect

his "defenseless," "vulnerable," and "innocent" daughter by using her as a sexual

"object," and that a prosecutor's emotional arguments designed to dislodge logic

as the prime arbiter of the facts are forbidden.     The comments, defendant

emphasizes, must be considered with the prosecutor's reference to Sofia as a

"motherless child" three times and having an "absent mother" twice during

opening statements. Defendant further asserts the issue was not cured by the

court's subsequent instruction to the jury, and the court should have granted a

mistrial. Further, relying on State v. Marshall, 123 N.J. 1, 154-156 (1991) and

State v. Farrell, 61 N.J. 99, 105 (1972), defendant avows the prosecutor

committed misconduct by bolstering Barb's credibility as a witness by stating

she was a "sweet," "loving," and nearly heavenly woman.

      We agree, as did Judge Mercado-Ramirez, that the prosecutor's remarks

in question were better left unsaid because they were inappropriate for an

opening statement. Yet, when viewing the remarks in the context of the entire

trial, we do not conclude that they so infected the proceedings as to deprive

defendant of a fair hearing so that his conviction should be reversed.




                                                                         A-3162-16T1
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      "The decision to grant or deny a mistrial is entrusted to the sound

discretion of the trial court, which should grant a mistrial only to prevent an

obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations

omitted). Whether a prejudicial remark can be defused by a curative instruction

or warrants a mistrial is left to the trial judge's competence. State v. Yough, 208

N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47 (1953)). We

will not disturb a trial judge's "denial of a mistrial motion absent a 'clear

showing' that 'the defendant suffered actual harm' or that the court otherwise

'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207

(1989)). Moreover, "when inadmissible evidence erroneously comes before the

jury, an appellate court should not order a new trial unless the error was 'clearly

capable of producing an unjust result.'" Id. at 397-98 (citing R. 2:10-2; State v.

Frisby, 174 N.J. 583, 591 (2002)).

      In evaluating claims of prosecutorial misconduct, we consider: "(1)

whether defense counsel made timely and proper objections to the improper

remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the

court ordered the remarks stricken from the record and instructed the jury to

disregard them." State v. Frost, 158 N.J. 76, 83 (1999). We must further assess

"the severity of the misconduct and its prejudicial effect on the defendant's right


                                                                           A-3162-16T1
                                       28
to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). In doing so,

we "consider the tenor of the trial and the responsiveness of counsel and the

court to the improprieties when they occurred." Ibid. When making opening

statements, "prosecutors should limit comments . . . to the facts [they] intend[]

in good faith to prove by competent evidence[.]" Id. at 360 (alterations in

original) (internal quotation marks omitted).       Because "[t]he purpose of a

prosecutor's opening statement is to present to the jury an outline or summary

of what the State expects to prove[,] [p]rosecutors should limit themselves in

their openings to what they will prove and not 'anticipate' their 'final argument.'"

W.L., 292 N.J. Super. at 108 (quoting State v. Ernst, 32 N.J. 567, 577 (1960)).

Prosecutors are prohibited from suggesting in their opening statements that they

know of reasons beyond the evidence why the jury should reach a certain

verdict. See State v. Wakefield, 190 N.J. 397, 438-40 (2007).

      Here, defendant objected to the prosecutor's improper remarks, and the

judge properly directed the prosecutor to refrain from making such comments

during her opening. Despite the prosecutor's failure to abide by the judge's

initial warnings, rather than grant the mistrial sought by defendant, the judge

appropriately gave curative instructions to the jury to disregard the challenged

remarks. The judge informed the jury the remarks were inappropriate for being


                                                                            A-3162-16T1
                                        29
argumentative and directed they should only be considered after hearing all the

evidence presented during the trial. At the close of the trial, the prosecutor's

closing remarks were consistent with the curative instructions the judge

provided. Moreover, the judge gave the jury preliminary and final instructions

that the attorney's comments were not evidence. See Id. at 440. We discern no

abuse of discretion in the judge's decision not to grant the mistrial defendant

sought. The jury is presumed to have followed the court's instructions. State v.

Smith, 212 N.J. 365, 409 (2012).

      Defendant's contentions that the curative instruction was flawed, and the

prosecutor's remarks bolstered the credibility of Barb, were not made known to

the judge. Thus, in considering the contentions under our plain error rule no

unjust result occurred depriving defendant of a fair trial. See R. 2:10-2. The

instruction given by the judge was an appropriate direction to the jury to remedy

the prosecutor's remarks. As for the comments that Barb was "sweet" and

"loving," they were premature for opening remarks, but the prosecutor was not

personally vouching for her credibility. See State v. Walden, 370 N.J. Super.

549, 560 (App. Div. 2004).




                                                                         A-3162-16T1
                                      30
                                       V.

      In Point IV, defendant maintains Judge Mercado-Ramirez erred in

admitting into evidence Sofia's photo as a thirteen-year-old because under

N.J.R.E. 403, it had no probative value given there was no dispute she lacked

consensual age to have sex when she was allegedly abused and it was prejudicial

because it depicted her as a young teen. Defendant argues reversal of his

conviction is warranted because the picture's "inherently inflammatory potential

. . . [had the] probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the basic issue[s]." State v. Thompson, 59 N.J.

396, 421 (1971).

      We discern no abuse of discretion in the judge's evidentiary ruling. The

photo was probative because it showed Sofia during the time period she claimed

she was victimized by her father. Even though there was no dispute she was

underage at that time, the State has the right to prove an element of the crimes

as well as providing the jurors an image of Sofia then, as opposed to the nearly

nineteen-year-old young woman providing testimony before them. Besides

depicting her age, there is nothing suggestive or excessively sympathetic in the

photo. Therefore, the potential for prejudice did not outweigh the photograph's

probative worth.


                                                                         A-3162-16T1
                                      31
                                      VI.

      Finally, in Point V, defendant argues his sentences are excessive due to

the judge's application of aggravating factor one and imposing consecutive

NERA sentences without considering the real time consequences of his prison

term. Defendant's sentencing arguments are without sufficient merit to warrant

much discussion. R. 2:11-3(e)(2).

      Defendant exploited his parental authority and repeatedly sexually abused

his daughter over a two-year period, beginning when she was twelve years old.

We cannot conclude his aggregate thirty-year prison term, subject to NERA, is

a conscience-shocking sentence for those crimes or represents an abuse of the

trial court's wide discretion over sentencing. See State v. Case, 220 N.J. 49, 54

(2014); State v. Bieniek, 200 N.J. 601, 607-08 (2010).

      Affirmed in part, remanded solely for correction of the JOC.




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                                      32
