                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0469-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KRISLA REZIREKSYON,
a/k/a VENETTE OVILDE,

     Defendant-Appellant.
______________________________

                    Submitted February 25, 2019 – Decided May 1, 2019

                    Before Judges Messano, Gooden Brown, and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 12-06-1695.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      During the afternoon of May 22, 2011, the Irvington Police Department

received a 9-1-1 call from defendant, Krisla Rezireksyon Kris, a/k/a Venette

Ovilde, who reported that her eight-year-old daughter, C.R.K., was not

breathing.1 When paramedics arrived a few minutes later, they found the child's

lifeless body lying on a white sheet in the corner of the living room; she was

clad in white clothing and a diaper. One of her legs was wrapped in bandages

from its ankle to its thigh, she had no pulse, and rigor mortis had begun to set

in.

      When police officers and detectives arrived, they saw defendant and co-

defendant Myriam Janvier, both clad in white clothing. Defendant told one of

the officers she had two other children who were in Elizabeth. Detectives

Michael Anthony Davidson and Thomas Sheehan, from the Essex County

Prosecutor's Office also responded. Davidson noticed the apartment contained

no beds. There were white sheets on the walls and a podium with a Bible next

to it. Sheehan collected several pieces of rope, including some tied to radiators.

      Davidson discovered a "makeshift door" that was closed, but unlocked,

and covered by a white sheet. Upon entering, he discovered defendant's two


1
    We use initials to protect the children's identities. R. 1:38-3(c)(9).
Additionally, all the children were identified with initials and last name aliases
in the indictment. The jury verdict sheet reflects the aliases used during trial.
                                                                          A-0469-16T4
                                        2
other children, K.R.K., and S.R.K., seven- and six-years old respectively, in a

"weakened state," appearing malnourished and dressed in white. Both were

taken to a hospital for medical treatment.

       Police took defendant and Janvier to police headquarters, where defendant

provided a videotaped statement after officers read her the Miranda rights.2

Defendant claimed that C.R.K. had injured her leg two days before in a fall in

the bathroom. Defendant did not "believe in going to the doctor," and, instead,

applied a mixture of corn meal, salt and water to the leg. The leg swelled, and,

later, defendant saw that the skin appeared burned, with blisters and sores. She

applied more of the mixture and wrapped the leg again. Defendant discovered

C.R.K. was non-responsive in the morning of May 22, but prayed for some time

before calling 9-1-1.

       Defendant said she and Janvier had been living together for approximately

six months, and together they belonged to "faith" group, led by Eman uel

Rezireksyon. Defendant believed "Christ called [Rezireksyon] as a leader . . .

just like Moses and other disciples."        Together with Rezireksyon's two

daughters, the group would conduct Bible study at his residence or defendant's



2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-0469-16T4
                                        3
apartment, but defendant denied being a member of a "cult" or that she was

"brainwashed."     Davidson testified that he learned Rezireksyon was at

defendant's home the night before C.R.K. died.

      Defendant told detectives the family followed a strict diet, eating only

beans, bread and flour mixed with vegetables. On the weekends they fasted, the

children eating only soup. Defendant home schooled the children. She denied

ever tying them to the radiators, claiming, instead, that the ropes police found

were to warn the children the radiators were hot.

      The medical examiner, Dr. Eddy Lilavois, who responded to the scene and

later performed an autopsy, testified that C.R.K. was in an "advanced stage of

malnutrition." Defendant had informed him while at the apartment that she

consulted with others who recommended she apply a mixture of cornmeal and

gasoline to the leg, which she did. Dr. Lilavois opined that C.R.K. suffered a

fractured femur that had not healed properly, and he observed injuries to the skin

on the child's thigh that were "definitely caused by some kind of implement."

      Upon removing the wrappings, the doctor saw evidence of caustic burns,

which were caused by the gasoline. Dr. Lilavois opined the injuries were

between one- and two-weeks old. These chemical burns compromised the skin

tissue, permitting bacteria to enter and cause infections. Toxicological test


                                                                          A-0469-16T4
                                        4
results confirmed that C.R.K. had sepsis. The doctor opined that the cause of

death was "[c]omplications of an unattended, untreated fracture of [the] femur

of a severely malnourished child."

      Dr. Elizabeth Susan Hodgson, a board-certified pediatrician, testified as

an expert in general pediatrics and child abuse pediatrics. She examined K.R.K.

and S.R.K. the following day. Both were severely malnourished and their

growth was stunted. The doctor observed physical injuries on both. K.R.K. had

a fresh fracture of a bone in her hand, and S.R.K. had a healing fracture of his

right arm and more recent fractures of his foot. The doctor concluded both

children had inadequate diets "over many months," resulting in "nutritional

rickets," and life-threatening medical neglect.

      An Essex County grand jury indicted defendant and Janvier for the murder

of C.R.K, thirty-six other counts alleging crimes involving the maltreatment of

all three children, and defendant alone for hindering apprehension. Janvier

entered guilty pleas, but defendant elected to go to trial. 3



3
  Janvier pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1); three counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a); and three counts of third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2). In a separate opinion also filed today, A-5139-16, we
affirmed her conviction but remanded the matter to the trial court for
resentencing.
                                                                        A-0469-16T4
                                          5
      At trial, in addition to the above evidence, the State called K.R.K., now

eleven-years-old, as a witness.      She recalled the "pastor" coming to the

apartment, and said he treated the children nicely and brought them treats on

one occasion. K.R.K. never recalled leaving the apartment to play outside, visit

friends or go to the park. She testified that the children sometimes went days

without food.

      K.R.K. said that when defendant and "the other lady" left in the morning,

they would tie the children's ankles to the radiator and leave a bucket for them

to use as a toilet. K.R.K. said both would hit the children with a belt, cord or

brush as punishment for not finishing "homework," i.e., religious questions

defendant left to answer. She described other punishment and noted that at some

point, the children were so weak they lost the ability to walk and had to be

"dragged" around "like rag dolls."

      Defendant did not testify, but she called her landlord as a witness. He said

defendant was initially outgoing and "very personable," but, beginning in 2008,

defendant became "reserved," wore white clothing, as did her children, and

rarely came to his nearby convenience store. He witnessed a man visiting the

apartment for two hours every day, accompanied by women dressed in white.




                                                                          A-0469-16T4
                                        6
      Defendant also presented the testimony of Dr. Joel E. Morgan, an expert

in psychology and forensic neuropsychology. He administered various tests to

defendant and opined her IQ was "extremely low," her decision-making was

impaired, and she was "easily manipulated."          Dr. Morgan concluded that

defendant "did not act knowingly in the sense that her strict ideas about that diet,

medical care and so forth was a result of her limited ability to really comprehend

the potential danger . . . ."4

      A jury convicted defendant of the lesser-included offense of first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), sixteen counts of second-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and two counts

of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). The jury acquitted

defendant of the remaining charges. 5 At sentencing, the judge imposed a twenty-

five-year sentence on the aggravated manslaughter conviction, subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2, and two consecutive ten-year sentences

for two counts of endangering the welfare of a child, for an aggregate sentence




4
  The State called Dr. Azariah Eshkenazi, an expert in forensic psychiatry, to
rebut Dr. Morgan's testimony and defendant's diminished capacity defense.
5
   At the conclusion of the State's case, the judge dismissed the charge of
conspiracy to commit murder.
                                                                            A-0469-16T4
                                         7
of forty-five years imprisonment. The judge imposed concurrent sentences on

the remaining counts.

     Before us, defendant raises the following issues:

           POINT I

           THE COURT'S LIMITATION OF THE EXPERT
           OPINION OF DR. MORGAN DENIED DEFENDANT
           A FAIR TRIAL.

           POINT II

           THE TRIAL COURT ERRED IN REFUSING
           DEFENDANT'S REQUESTS TO CHARGE ON
           THIRD[-]PARTY      GUILT      AND
           IGNORANCE/MISTAKE.

           POINT III

           THE DEFENSE MOTION TO DISMISS THE JURY
           PANEL THAT HAD BEEN SHOWN THE COURT
           APPOINTED   SPECIAL   ADVOCATES    FOR
           CHILDREN VIDEO DURING JURY ORIENTATION
           SHOULD HAVE BEEN GRANTED.

           POINT IV

           THE TESTIMONY OF DR. HODGSON EXCEEDED
           THE PROPER SCOPE FOR EXPERT WITNESS AND
           OPINED ON THE ULTIMATE FACT IN ISSUE.

           POINT V

           THE DENIAL OF THE DEFENDANT'S MOTIONS
           FOR MISTRIAL BASED UPON THE TESTIMONY


                                                                    A-0469-16T4
                                      8
            OF THE STATE'S EXPERT DR. HODGSON WAS
            ERROR.

            POINT VI

            THE AGGREGATE SENTENCE OF [FORTY-FIVE]
            YEARS WITH [TWENTY-ONE] YEARS[, THREE]
            MONTHS OF PAROLE INELIGIBILITY IMPOSED
            UPON DEFENDANT WAS EXCESSIVE AND
            SHOULD BE REDUCED. (Not Raised Below)

            POINT VII

            THE   AGGREGATE       ERRORS        DENIED
            DEFENDANT A FAIR TRIAL. (Not Raised Below)

We have considered these arguments in light of the record and applicable legal

standards. We affirm.

                                      I.

      We address defendant's arguments regarding trial issues before turning to

challenges to the jury charge.

                                      A.

      In her third point, defendant contends the judge mistakenly exercised his

discretion by refusing to dismiss the panel of jurors who saw a video

presentation and received written material while in the jury assembly room




                                                                       A-0469-16T4
                                      9
regarding the Court Appointed Special Advocate (CASA) program. 6                  The

argument lacks sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We add only the following.

      Although defense counsel lodged an objection during jury selection, when

scheduling problems arose, the judge dismissed the entire original panel of

jurors and began jury selection anew. At that point, with the agreement of

counsel, the judge provided prospective jurors with a written questionnaire,

including one question asking if any juror recalled the CASA presentation. The

record reflects some follow-up questions for two jurors who answered

affirmatively, but nothing in the record indicates either the prosecutor or defense

counsel raised the issue again.

      Defendant's fourth and fifth points contend Dr. Hodgson's testimony

exceeded the bounds of proper expert testimony, and the judge erred in denying

a mistrial based on that testimony. The issues arose in the following context.




6
   CASA volunteers "serve as a resource to the courts in determining the best
interests of any child less than [eighteen] years of age who has been removed
from his home due to abuse or neglect." N.J.S.A. 2A:4A-92(b). The Court
Rules authorize the judge to appoint a CASA volunteer "[i]n any case in which
the welfare of a child is in issue . . . who shall act on the court's behalf to
undertake certain activities in furtherance of the child's interests . . . ." R. 5:8C.


                                                                              A-0469-16T4
                                         10
      The judge conducted a pre-trial hearing pursuant to N.J.R.E. 104

regarding the admissibility of Dr. Hodgson's testimony. Defendant objected to

the doctor rendering opinions that the children were abused or neglected,

arguing those were legal terms, which the judge would ultimately define for the

jury, and the doctor's opinion using those terms reached "the ultimate issue" at

trial. The transcripts provided on appeal fail to reveal that the judge made a

formal ruling on the issue, but it is apparent that he permitted Dr. Hodgson to

use those terms during her testimony before the jury, as we already noted.

      During her testimony, the prosecutor showed the doctor photographs of

the children for her to identify and describe what they depicted. In response to

viewing one photograph, Dr. Hodgson said:        "Okay.   This is a picture of

[K.R.K.'s] abdomen, and again, I apologize to the jury and the [c]ourt. These

are disturbing photos to look at. I feel disturbed when I look —." Defense

counsel objected and moved for a mistrial at sidebar.          The prosecutor

acknowledged the statement was improper but contended a curative instruction

was the proper remedy.

      Outside the jury's presence, the judge told the witness not to relate her

personal emotions in answering any questions.       He then gave the jury the

following instructions:


                                                                        A-0469-16T4
                                      11
                 Ladies and gentlemen of the jury, with
           regard to Dr. Hodgson's comment right before I
           sent you into the jury room, you are to disregard
           it. And it is stricken from the record.

                 Dr. Hodgson's personal feeling or
           emotional response is irrelevant and improper to
           communicate to the jury. Inappropriate. Her
           views and her own emotional responses are not to
           be considered by you in your deliberations in any
           manner for any purpose at any time.

     Later, the following exchange took place between the prosecutor and Dr.

Hodgson:

           Q: Now, Dr. Hodgson, I'm going to direct your
           attention to [C.R.K.] Did you do a medical record
           review of [C.R.K.]?

           A: I did.

           Q: And tell us what a medical record review is.

           A: It is, again, looking at as many medical records as
           we could get a hold of on her from her birth until, I
           think she last was seen medically by Dr. Jaffrey in
           2007. I also had obtained the autopsy report from the
           medical examiner's office. The medical examiner's
           office had shared with me copies of the X-rays on
           [C.R.K.] They had spoken with me. They also shared
           with me a CD of their photographs of the whole
           autopsy. I then also reviewed the [Division of Child
           Protection and Permanency (DCPP)] records and
           previous referrals that had been made —

           [(emphasis added).]


                                                                     A-0469-16T4
                                    12
Defense counsel objected, arguing references to "previous referrals" from the

DCPP, for which there was no evidence at trial, was highly prejudicial. Counsel

moved for a mistrial, arguing that no curative instruction could remedy the

comments.

      The next day, the judge acceded to defense counsel's request to hold a

limited N.J.R.E. 104 hearing outside the jury's presence to ascertain whether the

doctor had intentionally ignored instructions from the prosecutor to avoid any

reference to prior DCPP referrals. Afterwards, defense counsel again moved for

a mistrial.

      In denying the motion, the judge found: 1) "based on the representations

made," there was "absolutely no prosecutorial misconduct in the preparation of

. . . Dr. Hodgson to testify"; 2) the doctor had "no intent to suggest to the jury

that . . . defendant was ever an object of a previous neglect or abuse investigation

or had ever been arrested for child abuse"; 3) Dr. Hodgson's testimony that she

did not recall the prosecutor's instruction not to mention the previous referrals

was credible; and 4) "one comment by the doctor" did not have "the effect of

depriving this defendant of a fair trial." The judge offered to provide a curat ive

instruction, but defendant specifically asked that the judge not give one.




                                                                             A-0469-16T4
                                        13
      As to the substance of Dr. Hodgson's testimony, defendant reiterates the

arguments she made before the trial judge. We find them unpersuasive.

      We acknowledge that the offense of endangering the welfare of children

makes it a crime for any person with a legal duty for the care of a child to cause

the child "harm that would make the child an abused or neglected child as

defined in" Title 9. N.J.S.A. 2C:24-4(a)(2). N.J.S.A. 9:6-8.21(c), in turn,

defines an "[a]bused or neglected child . . . ."

      "Testimony in the form of an opinion or inference otherwise admissible is

not objectionable because it embraces an ultimate issue to be decided by the trier

of fact." N.J.R.E. 704. Nevertheless, expert opinion testimony should "avoid

use of precise terminology found in the statute[.]" State v. Cain, 224 N.J. 410,

424 (2016) (quoting State v. Nesbitt, 185 N.J. 504, 508 (2006)).          "Expert

testimony that recites the legal conclusion sought in a verdict is not helpful to

the jury." Nesbitt, 185 N.J. at 517.

      Here, Dr. Hodgson rendered extensive testimony regarding the children's

physical condition upon examination, explaining carefully and extensively why

disease processes or metabolic issues did not cause what she observed. She

explained why their physical injuries were not consistent with accidents or a

child's normal activities.   In short, her testimony was more than a simple


                                                                          A-0469-16T4
                                        14
parroting of statutory terminology, and it provided information that was well

"beyond the ken of an average juror." Cain, 224 N.J. at 420 (quoting State v.

Reeds, 197 N.J. 280, 290 (2009)).

      Moreover, on cross-examination, Dr. Hodgson explained that she had no

knowledge of the criminal statutes or the legal basis for a finding of "abuse and

neglect" in New Jersey. The judge's final instructions made clear that the

elements of the offense included the specific statutory definition of abuse and

neglect. In other words, the jury understood that even though the doctor used

those terms, they had especial meaning, which the jury needed to consider in

reaching its verdict. We do not think the doctor's use of the terms was "clearly

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

      We also reject defendant's other argument made in Point V. "A mistrial

should only be granted 'to prevent an obvious failure of justice[,]'" and the

decision to grant a mistrial is "entrusted to the sound discretion of the trial

court." State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Harvey, 151 N.J.

117, 205 (1997)). "If there is 'an appropriate alternative course of action,' a

mistrial is not a proper exercise of discretion." Ibid. (quoting State v. Allah,

170 N.J. 269, 281 (2002)). "[W]hether a prejudicial remark can be neutralized

through a curative instruction or undermines the fairness of a trial are matters


                                                                         A-0469-16T4
                                       15
'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J.

385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646–47 (1984)).

      Here, the judge demonstrated a careful, thoughtful exercise of his

discretion in both instances. The curative instruction after the first statement by

the doctor was forceful and immediate. We doubt the jury noticed the fleeting

reference to "previous referrals," or that it prejudiced defendant in any

meaningful way. Defendant declined the judge's offer to issue another curative

instruction. We find no reason to reverse.

      Defendant filed notice of her intention to assert a diminished capacity

defense, relying on the report of Dr. Morgan.          He generally opined that

defendant became dependent upon Rezireksyon, who exploited her because of

her limited cognitive abilities. Dr. Morgan likened Rezireksyon to cult leaders,

describing him as a "pathological narcissist," who was "able to prey" on

defendant's characteristics, which left her incapable of opposing "this

overpowering individual, who exploited her religious zeal and her naiveté."

According to Dr. Morgan, defendant "trusted [Rezireksyon's] judgment above

her own and believed that when cooperating with him her daughter would heal

and improve." The State urged the judge to limit Dr. Morgan from expressing




                                                                           A-0469-16T4
                                       16
any opinion regarding defendant's religious devotion and its relationship, if any,

to her alleged diminished capacity.

      The judge agreed with the State. In a subsequent written decision, the

judge explained that Dr. Morgan's opinion that Rezireksyon was a "pathological

narcissist who prey[ed] on vulnerable individuals" was not supported by any

facts or data, because the doctor never even spoke with Rezireksyon. The judge

noted that the report utilized terms such as "cult," "cult-like" and "brainwashing"

without ever defining them. The judge also concluded that Dr. Morgan could

not testify that defendant was "easily exploitable" by Rezireksyon because of

her intellectual limitations and religious beliefs, since that conclusion was

"speculative" and fell outside the "scope of Dr. Morgan's expertise."

      However, the judge permitted Dr. Morgan to testify that defendant

"suffer[ed] from a mental deficiency that affected her cognitive capacity to form

the requisite mental states" based on the tests he administered. In essence, the

judge concluded that expert testimony from Dr. Morgan that linked defendant's

religious devotion to her diminished capacity was improper.

      In Point I, defendant argues the judge erred by limiting the scope of her

expert's testimony. We again disagree.




                                                                           A-0469-16T4
                                       17
      "The Criminal Code authorizes a defendant to present evidence of a

mental disease or defect to 'negate the presence of an essential mental element

of the crime . . . .'" State v. Baum, 224 N.J. 147, 160 (2016) (quoting State v.

Rivera, 205 N.J. 472, 487 (2011)); see also N.J.S.A. 2C:4-2. "This defense 'was

designed by the Legislature not as a justification or an excuse, nor as a matter

of diminished or partial responsibility, but as a factor bearing on the presence or

absence of an essential element of the crime as designated by the Code.'" Baum,

224 N.J. at 160 (quoting State v. Breakiron, 108 N.J. 591, 608 (1987)).

                   A defendant may raise a diminished capacity
            defense if (1) he or she "has presented evidence of a
            mental disease or defect that interferes with cognitive
            ability sufficient to prevent or interfere with the
            formation of the requisite intent or mens rea[,]" and (2)
            "the record contains evidence that the claimed
            deficiency did affect the defendant's cognitive capacity
            to form the mental state necessary for the commission
            of the crime."

            [Id. at 160-61 (alteration in original) (quoting State v.
            Galloway, 133 N.J. 631, 647 (1993)).]

      Nothing in Dr. Morgan's report or in the trial record indicates he had any

qualifications, or the factual basis upon which to render an opinion regarding

religious beliefs and intellectually impaired individuals. Further, defendant

cites no precedent linking religiosity with diminished capacity or that

defendant's religiosity was a "mental disease or defect" as that phrase is utilized

                                                                           A-0469-16T4
                                       18
in N.J.S.A. 2C:4-2. The court properly limited Dr. Morgan's testimony to his

testing, diagnoses, and findings regarding what he believed to be defendant's

impaired ability to formulate the requisite intent, i.e., purposeful or knowing

conduct that was a prerequisite for a murder conviction. The jury may have

indeed accepted the doctor's opinion, having found defendant not guilty of

murder.

                                        B.

      Defendant asserts the judge's refusal to provide jury instructions on third-

party guilt, see Model Jury Charges (Criminal), "Third Party Guilt Jury Charge"

(approved March 9, 2015), and mistake, see Model Jury Charges (Criminal),

"Ignorance or Mistake (N.J.S.A. 2C:2-4)" (approved May 7, 2007), was

reversible error. We again disagree.

      We begin by acknowledging, "[a] trial court must charge the jury on an

affirmative defense if there is a rational basis in the evidence for the charge."

State v. Bass, 224 N.J. 285, 320 (2016) (citing State v. Singleton, 211 N.J. 157,

183 (2012)). "[I]f defense counsel does not request the charge, the court should

still give it when the evidence clearly indicates that it is appropriate." State v.

Daniels, 224 N.J. 168, 181 (2016) (citing State v. Walker, 203 N.J. 73, 87

(2010)).


                                                                           A-0469-16T4
                                       19
      The third-party-guilt defense is not an affirmative defense, but rather

seeks to raise a reasonable doubt about an essential element of the State's case,

identity. See State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Fortin,

178 N.J. 540, 591 (2004) (noting a defendant's constitutional right to introduce

evidence "if the proof offered has a rational tendency to engender a reasonable

doubt with respect to an essential feature of the State's case")). "[E]ven if there

is no evidence linking another specific suspect to the crime, we 'have recognized

that evidence that tends to create reasonable doubt that someone else,

generically, rather than defendant, committed the offense, is admissible.'" State

v. Perry, 225 N.J. 222, 238-39 (2016) (quoting State v. Loftin, 146 N.J. 295, 345

(1996)).

      Defendant argued that the evidence supported the charge as to both Janvier

and Rezireksyon, noting the children were left alone with Janvier on occasion,

and Rezireksyon was in the apartment the night before C.R.K.'s death and

exerted influence over both women. The judge rejected defendant's request,

ruling there was "no rational basis that this jury could find . . . the crimes alleged

in this indictment could have been committed by anyone other than defendant

alone or as an accomplice to . . . Janvier." The judge gave jury instructions on

accomplice liability.


                                                                              A-0469-16T4
                                         20
      With respect to Rezireksyon, the judge reasoned, "there's absolutely no

evidence that he committed any of the acts charged, either as a principal, a co-

conspirator or accomplice." In her statement, defendant admitted that she was

responsible for feeding the children, and the record contained no evidence that

Rezireksyon ever assaulted or otherwise harmed the children. We concur with

the judge's analysis of the issue.

      Mistake of fact is a defense if either: (1) the mistake "negat[es] the

culpable mental state required to establish the offense; or (2) [t]he law provides

that the state of mind established by such ignorance or mistake constitutes a

defense." N.J.S.A. 2C:2-4(a). A mistake of fact is not a true "defense," because

it merely amounts to an attack "on the prosecution's ability to prove the requisite

mental state of the crime charged." State v. Wickliff, 378 N.J. Super. 328, 334

(App. Div. 2005). In other words, mistake of fact is a "failure of proof" defense.

State v. R.T., 411 N.J. Super. 35, 61-62 (App. Div. 2009). The concept of

mistake is "technically unnecessary, because '[it] simply confirm[s that n]o

person may be convicted of an offense unless each element . . . is proven beyond

a reasonable doubt.'" State v. Pena, 178 N.J. 297, 306 (2004) (alterations in

original) (quoting State v. Sexton, 160 N.J. 93, 100 (1999)).




                                                                           A-0469-16T4
                                       21
      Here, defendant submitted a proposed charge advising jurors that

defendant mistakenly restricted the children's diet "pursuant to her beliefs," and

did not seek medical treatment because she believed "pursuing natural remedies"

would make her and the children "more spiritual[.]" The proposed charge told

jurors: "If you find that [defendant] honestly but mistakenly held the belief that

[sic] she could not have acted knowingly or purposeful [sic], which the State is

required to prove beyond a reasonable doubt."

      The State objected to the charge, and, although concluding there was

sufficient evidence to support providing instructions on mistake, the judge

agreed that references to defendant's religious beliefs was inappropriate. As the

judge noted, and we agree, a person's religious beliefs cannot serve as a mistake

of fact that excuses otherwise criminal conduct. Even if defendant believed not

seeking medical care would make the children more "spiritual," such is not the

equivalent of defendant believing foregoing medical care would actually prevent

physical harm to the children. At the same time, defendant's proposed charge

would permit a reasonable juror to conclude that if defendant acted in

accordance with her religion, she could not have engaged in criminal conduct.

      The judge crafted a different mistake instruction, but defendant objected,

arguing the charge was "without proper context" if the religious connotation was


                                                                          A-0469-16T4
                                       22
omitted. Defense counsel posited that without including defendant's religious

beliefs in the charge, it was "not credible to the defense, not helpful to the

defense, not rational, and would actually prejudice" defendant. Defense counsel

also objected to the charge's application to crimes involving reckless conduct,

including aggravated manslaughter and reckless manslaughter.

      Ultimately, when defendant again objected to the judge's second proposed

charge because it lacked any "religious context," the judge decided not to give

any charge and told counsel "the defense is free to argue that the State has not

proven the requisite state of mind, with or without the mistake charge."

Nevertheless, the judge made a third and final attempt to craft a charge on the

issue, which closely tracked the model charge. Both the prosecutor and defense

counsel objected, and the judge did not provide any instructions on mistake in

his final charge.

      Under the circumstances of this case, in particular the judge's

conscientious attempts to formulate an appropriate jury charge, we cannot

conclude omitting any instructions on mistake was reversible error. First, the

final instructions repeatedly reminded the jurors of the State's responsibility to

prove each element of the offenses charged, including the requisite mental

states.   Second, defense counsel argued in summation that defendant


                                                                          A-0469-16T4
                                       23
"mistakenly" listened to others when she decided to apply a "natural treatment"

to C.R.K.'s leg, and this demonstrated defendant was "trying to heal" her

daughter. Counsel further argued defendant's dietary restrictions were borne of

a "mistaken[] belie[f] that it would lead to a pure, spiritual life." We consider

whether the judge's omission of any charge on mistake requires reversal "in light

of the arguments made by trial counsel, as those arguments can mitigate

prejudice resulting from a less-than-perfect charge." State v. Robinson, 165 N.J.

32, 47 (2000) (citing State v. Morton, 155 N.J. 383, 423 (1998)). Lastly, we

note that the jury acquitted defendant of purposeful and knowing murder, the

major charge to which defendant sought the instruction.

      In light of the foregoing discussion, we obviously reject defendant's

contention in Point VII that cumulative errors require reversal. See State v.

Orecchio, 16 N.J. 125, 129 (1954) (holding that, where "legal errors . . . in their

aggregate have rendered the trial unfair, . . . fundamental constitutional concepts

dictate the granting of new trial before an impartial jury").          We affirm

defendant's conviction.

                                        II.

      In sentencing defendant, the judge found aggravating factors one, two,

three and nine. See N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the


                                                                           A-0469-16T4
                                       24
offense, . . . including whether . . . it was committed in an especially heinous,

cruel, or depraved manner"); (a)(2) ("gravity and seriousness of harm

inflicted . . . , including whether . . . defendant knew . . . the victim . . . was

particularly vulnerable or incapable of resistance due to . . . extreme

youth . . . ."); (a)(3) (the risk of re-offense); and (a)(9) (the need to deter

defendant and others). The judge also found mitigating factor seven.            See

N.J.S.A. 2C:44-1(b)(7) (no prior criminal history). Defendant contends the

judge erroneously found certain aggravating factors, failed to find other

mitigating factors and improperly imposed consecutive sentences.

      "Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). As the Court has reiterated:

            The appellate court must affirm the sentence unless (1)
            the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

Furthermore, "trial judges have discretion to decide if sentences should run

concurrently or consecutively." Miller, 205 N.J. at 128. See N.J.S.A. 2C:44-

                                                                           A-0469-16T4
                                       25
5(a).    "When a sentencing court properly evaluates the Yarbough factors7 in

light of the record, the court's decision will not normally be disturbed on appeal."

Id. at 129.


7
    The Yarbough factors are:

              (1) there can be no free crimes in a system for which
              the punishment shall fit the crime;

              (2) the reasons for imposing either a consecutive or
              concurrent sentence should be separately stated in the
              sentencing decision;

              (3) some reasons to be considered by the sentencing
              court should include facts relating to the crimes,
              including whether or not:

                    (a) the crimes and their objectives were
                    predominantly independent of each other;

                    (b) the crimes involved separate acts of
                    violence or threats of violence;

                    (c) the crimes were committed at different
                    times or separate places, rather than being
                    committed so closely in time and place as
                    to indicate a single period of aberrant
                    behavior;

                    (d) any of the crimes involved multiple
                    victims;

                    (e) the convictions for which the sentences
                    are to be imposed are numerous;


                                                                            A-0469-16T4
                                        26
      Defendant argues the judge relied on post-mortem evidence — cockroach

bites the medical examiner found on C.R.K.'s body — to support his conclusion

that her conduct was "especially heinous, cruel, or depraved." N.J.S.A. 2C:44-

1(a)(1). In State v. McGuire, 419 N.J. Super. 88, 158-60 (App. Div. 2011), we

held that the trial court did not abuse its discretion when considering the

depraved conduct of the defendant following the murder, because the sentencing

court viewed the defendant's actions "as a continuous episode of purposeful,

depraved, and cruel conduct." So, too, is defendant's conduct in this case.

However, even if the judge's reliance on this fact was mistaken, he listed several

other facts that support the finding of aggravating factor one.




            (4) there should be no double counting of aggravating
            factors;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense[.]

            [State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert.
            denied, 475 U.S. 1014(1986).]

A sixth factor, imposing an overall outer limit on consecutive sentences, was
superseded by legislative action. See State v. Eisenman, 153 N.J. 462, 478
(1998).


                                                                          A-0469-16T4
                                       27
      Defendant claims the judge erred in finding aggravating factor two,

claiming the age of the children was an element of endangering their welfare,

and, thus, the judge engaged in double counting. "[A] sentencing court must

scrupulously avoid 'double-counting' facts that establish the elements of the

relevant offense." Fuentes, 217 N.J. at 74–75 (citing Yarbough, 100 N.J. at

645). However, cognizant of the argument defendant now raises, the judge

essentially stated he was finding aggravating factor two specifically as to the

aggravated assault charges.

      Defendant argues the judge erred in finding aggravating factor three

because she lacked a criminal record, and the judge based this finding upon

defendant's refusal to accept responsibility for C.R.K.'s death and the injuries

inflicted on the other children. Despite defendant's suggestion that her lack of

a previous record undermines the court's decision to apply the third aggravating

factor, that factor "can be based on assessment of a defendant beyond the mere

fact of a prior conviction, or even in the absence of a criminal conviction." State

v. Thomas, 188 N.J. 137, 154 (2006). In State v. Carey, the Court reversed this

court and specifically found that a defendant's failure to accept responsibility

for the crime "does provide support for the trial court's conclusion" as to factor

three. 168 N.J. 413, 427 (2001). Moreover, the judge here specifically accorded


                                                                           A-0469-16T4
                                       28
less weight to factor three than the other aggravating factors. Defendant's

argument as to factor nine requires no comment. R. 2:11-3(e)(2).

      Defendant contends the judge should have found mitigating factors two,

four and eight. See N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that

[her] conduct would cause or threaten serious harm"); (b)(4) ("substantial

grounds tending to excuse or justify the defendant’s conduct, though failing to

establish a defense"); and (b)(8) ("defendant’s conduct was the result of

circumstances unlikely to recur"). However, the judge considered factors two

and four, including Dr. Morgan's report and testimony, and rejected their

application.   He also considered factor eight, and, although recognizing

defendant's parental rights were terminated in a separate action, the judge

concluded defendant might someday be in a position to have other children in

her care. We see no reason to disturb the judge's discretionary decisions.

      Defendant recognizes that the judge imposed consecutive sentences upon

the aggravated manslaughter, and two other counts — one for each of the

remaining two children — but argues this was an abuse of discretion because

"the offenses were interrelated, occurred within the same time and place and was

[sic] clearly one period of aberrant behavior." However, the record reveals the

judge addressed that argument, carefully considered the Yarbough factors, and


                                                                         A-0469-16T4
                                      29
concluded that three consecutive sentences were appropriate: one for the

aggravated manslaughter of C.R.K., one for malnourishment of S.R.K., and one

for a physical assault of K.R.K.

      We find no mistaken exercise of the judge's discretion in this regard.

      Affirmed.




                                                                         A-0469-16T4
                                      30
