                             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                        NOT FOR PUBLICATION WITHOUT THE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-2646-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GABINO RIVERA,

        Defendant-Appellant.

_______________________________

              Submitted October 11, 2017 – Decided November 13, 2017

              Before Judges Yannotti and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 13-
              01-0020.

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

              Thomas K. Isenhour, Acting Union County
              Prosecutor, attorney for respondent (Cynthia
              L.    Ritter,   Special   Deputy    Attorney
              General/Acting Assistant Prosecutor, on the
              brief).

PER CURIAM
       Defendant G.R. appeals from his December 4, 2015 judgment of

conviction (JOC) for sexual assault, criminal sexual conduct, and

endangering the welfare of a child, S.M.1                 He contends fresh-

complaint testimony from S.M.'s stepsister A.S. was improperly

admitted, and that his sentence is excessive.                  We affirm his

convictions, but vacate the sentence and remand for resentencing.

                                         I.

       The following facts come from the transcripts of defendant's

jury trial.

       Defendant was in a romantic relationship with S.M.'s paternal

grandmother prior to S.M.'s birth in 1995.2             From the age of four,

S.M.    lived   on   and   off    with   her    grandmother   and   defendant.

Defendant    helped   raise      S.M.,   and    S.M.   considered   and    called

defendant her grandfather.

       S.M. testified as follows.              Defendant first began acting

inappropriately toward her when she was eight years old.                  At that

time, S.M.'s father was in prison, so S.M. lived with her mother

during the week and her grandmother and defendant on the weekends.

Defendant kissed      S.M. on the lips once, and made subsequent



1
    We use initials to protect the privacy of the victim.
2
  At trial, S.M. referred to defendant as her step-grandfather,
and her grandmother's "husband," but it appears he was her long-
term live-in boyfriend.

                                         2                                A-2646-15T2
unsuccessful attempts to kiss her until her father was released

from prison.    S.M. then went to live with her father.   Eventually

her father's home grew to include her stepmother and her stepsister

A.S.

       In 2006, on S.M.'s eleventh birthday, her stepmother suffered

a miscarriage.    As a result, that night, S.M. and A.S. slept at

the residence her grandmother shared with defendant.       S.M. and

A.S. slept on the two sides of an L-shaped sofa in the living

room.

       S.M. testified defendant came into the room, put his hands

in her pants, and digitally penetrated her vagina for several

minutes while she was laying on the sofa.        S.M. did not yell

because she did not want A.S. to wake and see her grandfather

touching her.    Instead, S.M. tried to move away from defendant and

groan while pretending to be asleep until he left.

       Unbeknownst to S.M., A.S. was awake.   A.S. testified she saw

defendant enter the room, lift S.M.'s blanket, and start touching

S.M.'s "butt."    A.S. was in shock and did not say anything.

       A.S. testified the sexual abuse came up in conversation with

S.M. about a year later.      A.S. testified S.M. "asked me if I

remembered what happened that night and I said yes and she told

me not to say anything."



                                  3                          A-2646-15T2
     S.M. testified that she did not tell her mother because they

had no relationship at that time.    She did not tell her father

because she was concerned that he might react violently, and she

did not want him to get sent back to prison.   She did not tell her

sick grandmother because S.M. was worried that she would die if

she learned her "husband" had sexually abused her granddaughter.

     S.M. and A.S. testified that defendant would touch S.M.'s

thigh inappropriately when he was driving them to school over the

following years.   S.M. also testified that defendant digitally

penetrated her vagina in February 2011 and in August 2011.

     S.M. testified that in October 2011 defendant sent S.M. a

text message stating that he "desired" her.    S.M. told defendant

she was tired of his behavior and was going to tell her father.

Defendant begged her not to do so.

     S.M. did not discuss defendant's behavior with anyone else

until March 2012 when she told the social worker at her school.

The social worker alerted S.M.'s father and the police.

     The jury convicted defendant of second-degree sexual assault

on a victim less than thirteen years old, N.J.S.A. 2C:14-2(b);

second-degree endangering the welfare of a child through sexual

conduct, N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual




                                4                            A-2646-15T2
conduct using physical force or coercion, N.J.S.A. 2C:14-3(b).3

The court merged the criminal sexual conduct conviction with the

sexual assault conviction.      On the sexual assault conviction, the

court sentenced defendant to seven years in prison with an 85%

period of parole ineligibility pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.           The court imposed a concurrent

seven-year sentence on the endangering conviction.

      Defendant appeals, raising the following arguments:

            POINT I – THE ALLEGED FRESH-COMPLAINT EVIDENCE
            WAS NOT OF A "COMPLAINT" AT ALL, AND SHOULD
            NOT HAVE BEEN ADMITTED.

            POINT II – THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

                                    II.

      Defendant first argues that the trial court should not have

admitted    testimony   of   step-sister     A.S.   as   "fresh   complaint"

evidence regarding defendant's sexual abuse of S.M. on her eleventh

birthday.    We must hew to "our deferential standard for reviewing

a   trial   court's   evidentiary   rulings,    which    should   be    upheld



3
  The jury acquitted defendant of first-degree aggravated sexual
assault on a victim less than thirteen years old, N.J.S.A. 2C:14-
2(a)(1); first-degree sexual assault on a victim at least thirteen
and less than sixteen years old committed by a guardian, N.J.S.A.
2C:14-2(a)(2)(c); second-degree sexual assault by using physical
force or coercion, N.J.S.A. 2C:14-2(c)(1); and second-degree
sexual assault on a victim less than thirteen, N.J.S.A. 2C:14-
2(c)(4).

                                     5                                 A-2646-15T2
'"absent a showing of an abuse of discretion, i.e., there has been

a clear error of judgment."'"               State v. Perry, 225 N.J. 222, 233

(2016) (citations omitted).                 "An appellate court applying this

standard should not substitute its own judgment for that of the

trial court, unless 'the trial court's ruling "was so wide of the

mark    that       a   manifest    denial       of    justice   resulted."'"        Ibid.

(citation omitted).

       Before allowing A.S. to testify before the jury, the trial

court heard her testimony in a hearing under N.J.R.E. 104.                             The

court considered the fresh-complaint doctrine, which "allows the

admission of evidence of a victim's complaint of sexual abuse,

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).                    "In

order    to    qualify       as    fresh-complaint         evidence,      the   victim's

statement      must      have     been   made       spontaneously   and   voluntarily,

within a reasonable time after the alleged assault, to a person

the victim would ordinarily turn to for support." Ibid. (citations

omitted).

       The fresh-complaint "requirements are relaxed when they are

applied       to       juvenile    victims."           Ibid.    (citation       omitted).

"[C]hildren may be 'too frightened and embarrassed to talk about'

the sexual abuse they have encountered, and therefore, juvenile

                                                6                                 A-2646-15T2
victims are given additional time to complain, and their complaint

may   be   elicited   through   non-coercive   questioning."        Ibid.

(citation omitted).

      The trial court found A.S. credible, ruled the discussion

between S.M. and A.S. approximately one year after the sexual

assault satisfied all of the fresh-complaint requirements, and

held A.S.'s testimony about this conversation was admissible under

the   fresh-complaint   doctrine.       "Whether   these   criteria    for

admissibility are satisfied is committed to the sound discretion

of the trial judge."      State v. W.B., 205 N.J. 588, 616 (2011)

(upholding the trial court's finding that a sixteen-year-old girl

who complained "more than one and one-half years" after the abuse

complained within a reasonable time).4

      At the 104 hearing, defendant gave the reasons for excluding

S.M.'s fresh complaint to A.S., arguing that the complaint was too

long after the sexual assault, and that there was no evidence of

intimidation.   On appeal, however, defendant instead argues this

testimony "was not of a 'complaint' at all" because, unbeknownst

to S.M., A.S. already knew about the abuse.

      This argument "was not raised at trial, and thus defendant

can prevail on it only by demonstrating 'plain error.'"        State v.


4
   The trial court did not admit A.S.'s               testimony     about
conversations with S.M. in 2010 and 2011.

                                    7                             A-2646-15T2
Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165

N.J. 138 (2000).      To show plain error, "'defendant has the burden

of proving that the error was clear and obvious,'" and that it had

"'the clear capacity to bring about an unjust result.'"             State v.

Koskovich, 168 N.J. 448, 529 (2001) (citations omitted).

      In any event, we reject defendant's parsing of the word

"complaint." A "complaint" has long been defined as an "expression

of   grief,   pain,    or   resentment."      Webster's    New    Collegiate

Dictionary    230     (1977);   accord     Merriam-Webster's      Collegiate

Dictionary 254 (11th ed. 2014).          A "complaint" does not require

the complaining party to relay information the hearer does not

know.   A person can "complain" about the weather even though the

hearer is equally aware of the weather.

      Moreover, S.M.'s conversation with A.S. served the purpose

of the fresh-complaint doctrine.         The purpose of fresh complaint

evidence is "'to prove only that the alleged victim complained [at

a particular time].'"       W.B., supra, 205 N.J. at 616-17 (citation

omitted) (alteration by Court).          Whether the hearer already knew

about the crime is irrelevant.      It is similarly irrelevant whether

the victim conveyed the details about the crime.                 "The narrow

purpose of fresh-complaint testimony extends only to the fact of

the victim's complaint, not to its details."              R.K., supra, 220

N.J. at 460. "[T]he gist of the evidential circumstances is merely

                                     8                               A-2646-15T2
non-silence."   State v. Bethune, 121 N.J. 137, 146 (1990) (quoting

4 Wigmore On Evidence § 1136 at 307 (Chadbourne rev. 1972)).

     Here, A.S.'s testimony showed S.M. did not remain silent.

A.S. testified S.M. raised the subject of defendant's sexual

assault.   S.M.'s question "do you remember what happened that

night" sufficiently alerted A.S. that S.M. was talking about

defendant's sexual abuse on her birthday night.    See ibid.    A.S.

testified "[i]t was the only night that really stood out."      When

A.S. replied she knew what happened that night, nothing more needed

to be said.

     After A.S. testified at the 104 hearing, S.M. testified at

trial about the first time she and A.S. discussed defendant's

sexual abuse.   S.M. testified A.S. "brought it to my attention,"

and "she saw and she knew."    Defendant cites the former phrase to

show S.M. did not complain, but it also could mean A.S. brought

to S.M.'s attention that A.S. saw and knew about the sexual assault

after S.M. raised the issue.   Indeed, A.S. reaffirmed in her trial

testimony that S.M. raised the issue.     Moreover, S.M. testified

she and A.S. "spoke about it," so S.M. was not silent.      In any

event, S.M.'s trial testimony came after the court's ruling at the

104 hearing, and defendant did not seek to reopen that ruling.

     Defendant also cannot show prejudice.   A.S.'s testimony about

the conversation was brief and contained no details about the

                                  9                         A-2646-15T2
sexual assault.         Moreover, the trial court "charge[d] the jury

that    fresh-complaint      testimony        is     not   to   be     considered          as

substantive evidence of guilt, or as bolstering the credibility

of the victim; it may only be considered for the limited purpose

of confirming that a complaint was made."                   R.K., supra, 220 N.J.

at 456 (citation omitted).            Thus, defendant cannot show an error

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

                                        III.

       Defendant   next     challenges       his     sentence.         "It     is     well-

established      that     appellate     courts       review     the    trial    court's

'sentencing      determination        under     a     deferential        standard          of

review.'"       State v. Grate, 220 N.J. 317, 337 (2015) (citation

omitted).     This court is "'bound to affirm a sentence, even if

[we] would have arrived at a different result, as long as the

trial   court    properly     identifies       and    balances        aggravating        and

mitigating      factors    that   are    supported         by   competent      credible

evidence in the record.'"         Ibid. (citation omitted).

       Defendant challenges the trial court's finding of aggravating

factor two.      That factor addresses:

            The gravity and seriousness of harm inflicted
            on the victim, including whether or not the
            defendant knew or reasonably should have known
            that   the   victim   of   the   offense   was
            particularly vulnerable or incapable of
            resistance due to advanced age, ill-health,
            or extreme youth, or was for any other reason

                                        10                                          A-2646-15T2
            substantially incapable of exercising normal
            physical or mental power of resistance[.]

            [N.J.S.A. 2C:44-1(a)(2) (emphasis added).]

     At sentencing, defense counsel argued it was double-counting

to consider S.M.'s age.     Nonetheless, the court found:

            As to Aggravating Factor 2 the victim was
            young. She was less than 13 years old at the
            time she was sexually assaulted by the
            defendant.   She was particularly vulnerable
            to his actions due to her age and her
            relationship to the defendant, who was like a
            grandfather to her, as, in fact the defendant
            himself pointed out. I don't agree that it's
            double-counting at all, [defense counsel].
            It's a factor that certainly applies here,
            [t]he Court has found, because of the age of
            the victim at the time . . . of the events for
            which the defendant was convicted.

     On appeal, defendant argues the trial court's consideration

of age constituted double-counting because age is an element in

both offenses for which he was sentenced.       Under the circumstances

here, we are constrained to agree.

     Generally, "established elements of a crime for which a

defendant    is   being   sentenced    should   not   be   considered    as

aggravating circumstances in determining that sentence."            State

v. Kromphold, 162 N.J. 345, 353 (2000).           It is an element of

second-degree sexual assault that the victim had to be "less than

13 years old."    N.J.S.A. 2C:14-2(b).




                                  11                              A-2646-15T2
     In State v. C.H., 264 N.J. Super. 112 (App. Div. 1993), the

defendant committed sexual assault against a victim "who was age

eight."   Id. at 118.    We found the sentencing judge "err[ed] in

applying aggravating factor number two since the age of victim was

an element of the offense itself."    Id. at 140.   By contrast, in

State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), where

the victim of the sexual assault was four years old, we held "[t]he

extreme youth of the victim was a proper aggravating factor to

have been considered by the court."   Ibid.

     Our Supreme Court ultimately adopted the Taylor standard,

allowing consideration of aggravating facts if they are more

extreme than necessary to establish an element of the offense.     "A

sentencing court may consider 'aggravating facts showing that

[the] defendant's behavior extended to the extreme reaches of the

prohibited behavior.'"    State v. Fuentes, 217 N.J. 57, 75 (2014)

(quoting State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)

(citing Taylor, supra, 226 N.J. Super. at 453)).

     Applying that standard, eleven-year-old S.M. was not at the

extreme reaches of the prohibited behavior under the sexual assault

statute, which covers victims "less than 13 years old."    N.J.S.A.

2C:14-2(b).   She was three years older than the victim in C.H.,

who like defendant was closer to the maximum age than the minimum



                                12                          A-2646-15T2
age.    She was seven years older than the victim in Taylor, who was

closer to the minimum age.

       It is a closer call under the statute barring endangering the

welfare of a "child," which covers victims "under 18 years of

age."    N.J.S.A. 2C:24-4(a)(1), (b)(1).           However, as eleven-year-

old S.M. was nearer the maximum age than the minimum age, it cannot

be argued she was at "'the extreme reaches of the prohibited

behavior'" under the endangering statute.                 Fuentes, supra, 217

N.J. at 75 (citation omitted).         Thus, her age could not considered

as an aggravating factor for either conviction.

       The   trial   court   offered    a   second    reason      for   applying

aggravating     factor    two,   namely     that   S.M.    "was   particularly

vulnerable" due to "her relationship to the defendant," her de

facto grandfather.       "[S]ince the age of the victim alone makes the

crime" a sexual assault, and the relationship of the defendant to

the victim is not an element of sexual assault, it is "appropriate

to consider the relationship between the parties as an aggravating

factor" for sexual assault.        State v. Yarbough, 100 N.J. 627, 646

(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.

2d 308 (1986).

       However, it is unclear that the trial court would have found

the relationship alone sufficient to find aggravating factor two.

The court found aggravating factor two applied because S.M. was

                                       13                                A-2646-15T2
"young," "less than 13 years old," and vulnerable "due to her

age," and "because of the age of the victim."

     Moreover, the court did not explain whether it was relying

on the relationship between defendant and S.M. in imposing an

identical seven-year sentence for endangering.           One element of

endangering is that the defendant has "a legal duty for the care

of a child or who has assumed responsibility for the care of a

child."      N.J.S.A.    2C:24-4(a)(1).       An     aggravating      factor

inappropriate regarding one count can be considered in sentencing

on another count, State v. Boyer, 221 N.J. Super. 387, 405-06

(App. Div. 1987), but it appears the court relied on the same

aggravating factors for both sexual assault and endangering, as

it imposed seven-year sentences on both.

     "The   sentencing   court   must   not   only   ensure   that     facts

necessary to establish the elements of the defendant's offense are

not double-counted for purposes of sentencing," but its analysis

must be "clearly explained so that an appellate court may be

certain that the sentencing court has refrained from double-

counting the elements of the offense."        Fuentes, supra, 217 N.J.

at 76.    That was not the case here.

     Defendant also argues that the record did not support a

finding of aggravating factor nine.       "[T]he need for deterring the

defendant and others from violating the law."            N.J.S.A. 2C:44-

                                  14                                 A-2646-15T2
1(a)(9).   The trial court found "an overwhelming need to deter the

defendant from future sexual assaults and for sexual contacts and,

of course, to deter others from committing such egregious crimes."

Defense counsel conceded "the need to deter especially others from

doing this," but defendant contends there was not a need to deter

him.

       We disagree.   The record suggested defendant's feelings for

S.M. were extremely strong and led him to inappropriate behavior

when she was eight years old and eleven years old, at the very

least.     Moreover, defendant's attraction to an eleven-year-old

overcame the taboos arising from his obligations as her de facto

grandfather, suggesting he needed to be deterred from similarly

pursuing other juveniles unprotected by such taboos.

       We must consider whether the double-counting error regarding

aggravating factor two was harmless.        E.g., State v. M.A., 402

N.J. Super. 353, 372 (App. Div. 2008).        "Any error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result."    R. 2:10-2.     Because defendant objected to the double-

counting, the State bears the burden.

       The State stresses that even without aggravating factor two,

the aggravating factors would still outweigh the non-existent

mitigating factors.      In additional to aggravating factor nine, the

                                   15                          A-2646-15T2
trial court found aggravating factor six, "[t]he extent of the

defendant’s prior criminal record and the seriousness of the

offenses of which he has been convicted."           N.J.S.A. 2C:44-1(a)(6).

However, the court gave defendant "partial credit for the fact

that he has only one prior indictable conviction" and was sixty-

five-years old.

     Moreover, the trial court did not state the weight it gave

to each of the aggravating factors.              Further, the court did not

expressly       balance   the   aggravating   and     mitigating    factors      at

sentencing, although the JOC stated it was "clearly convinced that

aggravating factors 2, 6, and 9 substantially outweigh the non-

existent mitigating factors."

     The    State     stresses    the    trial    court   imposed    only      the

"presumptive" seven-year sentence on each second-degree crime.

See N.J.S.A. 2C:44-1(f)(1)(c).           However, in State v. Natale, 184

N.J. 458 (2005), our Supreme Court "conclude[d] that the Code's

system     of    presumptive     term    sentencing     violates    the     Sixth

Amendment's right to trial by jury," and remedied that defect by

"eliminating the presumptive terms."             Id. at 484, 487.

     The Supreme Court in Natale hypothesized "that many, if not

most, judges . . . will decide that [when] the aggravating and

mitigating factors are in equipoise, the midpoint will be an

appropriate sentence," "when the mitigating factors preponderate,

                                        16                                A-2646-15T2
sentences will tend toward the lower end of the range, and when

the aggravating factors preponderate, sentences will tend toward

the higher end of the range."           Id. at 488.     However, the Court

emphasized "[t]hat would be one reasonable approach, but it is not

compelled," and "no inflexible rule applies."               Ibid.      That is

evident here, as the trial court imposed a midpoint sentence even

though it found three aggravating and no mitigating factors. Thus,

it is not self-evident the court's sentence would remain unchanged

without aggravating factor two.

      The outcome might be different if defendant was raising the

double-counting argument for the first time on appeal, as he would

have the burden to show plain error.             However, the State has not

carried its burden to show by a preponderance of the evidence that

the sentence would not have been different in the absence of

aggravating factor two.        Thus, the State failed to show that the

double-counting error was not "clearly capable of producing an

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

      Accordingly, we vacate the sentences and remand to the trial

court for resentencing in accordance with this opinion, which does

"not necessarily bar the application of aggravating factor" two

on   remand   as   to   the   sexual   assault    conviction   based   on   the

relationship, if appropriate findings are made.             Fuentes, supra,

217 N.J. at 77.     We do not retain jurisdiction.

                                       17                              A-2646-15T2
Affirmed in part, vacated in part, and remanded.




                         18                        A-2646-15T2
