                             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                        NOT FOR PUBLICATION WITHOUT THE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-4928-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

M.S.,

     Defendant-Appellant.
____________________________

              Argued July 2, 2018 – Decided July 30, 2018

              Before Judges Carroll and Rose.

              On appeal from Superior Court of New Jersey, Law
              Division, Middlesex County, Indictment No. 13-05-
              0673.

              John W. Douard, Assistant Deputy Public Defender,
              argued the cause for appellant (Joseph E. Krakora,
              Public Defender, attorney; John W. Douard, of
              counsel and on the brief).

              Joie D. Piderit, Assistant Prosecutor, argued the
              cause for respondent (Andrew C. Carey, Middlesex
              County Prosecutor, attorney; Joie D. Piderit, of
              counsel and on the brief).

PER CURIAM
     Following a jury trial, defendant M.S.1 appeals from his

convictions and sentence for sexually assaulting his nineteen-

year-old stepdaughter, J.S.   Based on our review of the evidence

in light of the applicable law, we affirm defendant's convictions,

vacate his sentence, and remand for resentencing.

                                I.

     We summarize the facts and procedural history pertinent to

this appeal from the trial record.   Defendant was indicted by a

Middlesex County Grand Jury for first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a)(7) (count one), and third-degree

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count

two).   Defendant was found guilty of the lesser-included charge

of second-degree sexual assault by physical force, N.J.S.A. 2C:14-

2(c)(1) on count one, and count two as charged.     The trial court

sentenced defendant to an eight-year prison term with an eighty-

five percent parole ineligibility period pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.   Defendant is also subject

to Megan's Law reporting requirements, N.J.S.A. 2C:7-1 to -23, and

parole supervision for life, N.J.S.A. 2C:43-6.4.




1
  Because defendant and the victim are related, we use initials to
protect the victim's privacy.


                                2                           A-4928-15T2
     The evidence adduced at trial established that in October

2010, defendant and J.S.'s mother had been married for seventeen

years, but had separated recently.       On October 14, 2010, J.S.

attended a family party at a restaurant in Woodbridge.     Defendant

was in attendance.    Having consumed several shots of hard liquor

within one hour prior to the party, and another two alcoholic

beverages at the party, J.S. was so intoxicated that she vomited.

J.S. told defendant she did not want her mother to see her in that

condition, so he took her to his home.

     J.S. was "blacking in and out[,]" and needed defendant's

assistance to walk.   She told the jury:

          I remember being placed on the bed in the
          middle of the bed.    And then I remember my
          dress coming up over me and my hands going up
          and then falling . . . like just dead weight.
          They just fell. And then I remember his hand
          coming up from the back and unclasping my bra.

               . . . .

          I felt hands and my dress coming up over my
          head and my arms, . . . my dress was being
          taken off of me.

               . . . .

          At first [defendant's arms] were hugging me,
          and then as time went on, they got tighter and
          I remember trying to fight out of it And then
          all of [a] sudden, . . . I felt a penis, felt
          a penis head searching and that's when I
          started squirming. And then . . . I felt it
          go in, I felt half of it go in.


                                 3                           A-4928-15T2
            And that's when I started fighting and I
            started screaming ["]no, no,["] and I kept
            pushing back my elbow to try to loose[n]
            myself from the arms, and finally, like, when
            I felt it go in, . . . I hit it once, that
            last time, . . . and then it all went away.

     Upon awakening the following morning, J.S. was naked, alone

in defendant's bed.        She noticed her clothing was "folded neatly

and nicely," which is not something she would have done in her

drunken state.      Because J.S. did not feel sore, she was not sure

whether "what [she] felt happened to [her] the night prior was

. . . a dream or if it really happened."             Defendant entered the

bedroom    and,   although    J.S.   did   not    question   him   about    the

encounter, defendant volunteered that she had been "fighting with

the sheets and . . . kept saying [']no.[']"

     When J.S. returned home, she called her best friend and told

her what happened.         J.S. then told her mother.        On October 17,

2010,     the   incident    was   reported   to     the   Woodbridge    Police

Department, and J.S. was examined by Danielle Peloquin, a sexual

assault nurse examiner with the Middlesex County Rape Crisis

Intervention Center.         The swab taken from J.S.'s vagina tested

positive for the presence of semen.          That specimen and a buccal

swab taken from defendant were submitted for DNA testing.

     Lynn Crutchley testified on behalf of the State as an expert

in forensic DNA testing and analysis.             In addition to performing


                                      4                                A-4928-15T2
traditional      "STR   DNA    testing,"       on    the   samples   obtained   from

defendant and J.S., Crutchley performed "Y-STR testing[,]" which

focuses "strictly on male DNA."                Y-STR testing is useful where,

as here, there is a prevalence of female DNA in the vaginal

samples.

      The results of the traditional STR testing were inconclusive

as   to    the   presence     of   defendant's       DNA.     However,   Crutchley

testified defendant and "all of his paternal male relatives cannot

be excluded as possible contributors to the Y-STR DNA profile

obtained."       Crutchley also indicated that profile "is expected to

occur no more frequently than . . . 1 in 1,444 of the Hispanic

population."

          Peloquin testified that sexual assault examinations are

generally conducted "within five days" of the incident "[b]ecause

evidence     will   disappear       just   by       natural   body   functions[,]"

including showering and urination.                   J.S. testified she did not

have consensual sex with defendant.                  Nor did she have sex with

anyone else between the day of the incident and the day she

reported it to the police.

      Defendant testified and claimed he removed J.S.'s dress,

because it was soaked in vomit, before helping her into his bed.

He denied sexually assaulting J.S.                  Following his conviction, he

maintained his innocence during his evaluation, at the Adult

                                           5                                A-4928-15T2
Diagnostic Treatment Center in Avenel, to determine whether he was

eligible    for   sentencing   pursuant   to   N.J.S.A.   2C:47-1   (Avenel

report).

     On appeal, defendant raises the following points for our

consideration:

            POINT I

            THE PROSECUTOR FALSELY AND REPEATEDLY CLAIMED,
            OVER OBJECTION, THAT M.S.'S SEMEN WAS FOUND
            CONCLUSIVELY IN J.S.'S VAGINA, DESPITE THE
            STATE'S EXPERT'S TESTIMONY THAT M.S. COULD NOT
            BE EXCLUDED AS THE SOURCE OF THE SEMEN,
            THEREBY COMMITTING EGREGIOUS PROSECUTORIAL
            MISCONDUCT.   THE JUDGE DENIED M.S.'S MOTION
            FOR   A  MISTRIAL,   THEREBY   VIOLATING   HIS
            CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE
            PROCESS.   U.S. CONST. AMEND. VI, XIV; N.J.
            CONST. ART. [I], ¶[¶] 1, 10.

            POINT II

            THE EIGHT-YEAR SENTENCE, WITH AN [EIGHTY-FIVE
            PERCENT] PERIOD OF PAROLE INELIGIBILITY WAS
            MANIFESTLY EXCESSIVE, IN LIGHT OF M.S.'S CLEAN
            PRIOR RECORD, CLOSE FAMILY TIES, AND STABLE
            EMPLOYMENT RECORD.

                               II.

                               A.

     We view prosecutorial misconduct under the harmless error

standard.    State v. R.B., 183 N.J. 308, 330 (2005).        To determine

whether a prosecutor's improper comments in summation warrant

reversal, we assess whether the impropriety was "so egregious that

it deprived the defendant of a fair trial."        State v. Jackson, 211

                                     6                              A-4928-15T2
N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83

(1999)).   In making this assessment, we "consider[] 'the tenor of

the trial and the responsiveness of counsel and the court to the

improprieties when they occurred.'"       Ibid. (quoting State v.

Timmendequas, 161 N.J. 515, 575 (1999).

     However, the prosecution's duty to achieve justice does not

forbid a prosecutor from presenting the State's case in a "vigorous

and forceful" manner.   R.B., 183 N.J. at 332 (quoting Frost, 158

N.J. at 82).    "Prosecutors are afforded considerable leeway in

closing arguments as long as their comments are reasonably related

to the scope of the evidence presented."     Ibid. (quoting Frost,

158 N.J. at 82); see also State v. Mayberry, 52 N.J. 413, 437

(1968) ("So long as he stays within the evidence and the legitimate

inferences therefrom the Prosecutor is entitled to wide latitude

in his summation.").

     "Thus, '[t]o justify reversal, the prosecutor's conduct must

have been "clearly and unmistakably improper," and must have

substantially prejudiced defendant's fundamental right to have a

jury fairly evaluate the merits of his defense.'"         State v.

Wakefield, 190 N.J. 397, 438 (2007) (alteration in original)

(quoting State v. Papasavvas (I), 163 N.J. 565, 625 (2000)).

     Here, during cross-examination of defendant, the prosecutor

suggested J.S. had stopped communicating with him because of "the

                                 7                          A-4928-15T2
fact that [his] semen was found in her vagina."                    Defense counsel

made a timely objection, and the prosecutor withdrew the question.

Nonetheless, at the conclusion of defendant's testimony, and again

following the close of evidence, defendant moved for a mistrial,

claiming the prosecutor's comment was contrary to the evidence and

"scientifically       inaccurate."          When    that    motion    was    denied,

defendant    sought    to    preclude   the    prosecutor      from    arguing       in

summation that defendant's semen was found in J.S.'s vagina.                       The

trial judge denied the applications, finding the prosecutor's

anticipatory comment was a "fair inference in the testimony."                        We

agree.

     As he did before the trial judge, defendant now argues the

prosecutor improperly drew inferences for the jury through her

repeated comments misconstruing the scientific evidence presented.

Initially, he cites her statement:                 "Semen, semen, semen, which

matched defendant, was found in her vagina."                  However, defendant

fails to cite the prosecutor's comment immediately preceding that

snippet, i.e., "The DNA evidence in this case is overwhelming

corroboration    that       what   [J.S.]    remembered      about    this     sexual

assault actually happened."          Defendant also claims the prosecutor

improperly    "drew    the    inference      for    the    jury:   that     even   the

statistically correct way to describe the DNA test results were



                                        8                                     A-4928-15T2
of no matter because nobody else could have been the semen donor."

We disagree.

     The    prosecutor's   comments,    when   read   together,    are

"legitimate inferences" from the evidence in the record.           See

Wakefield, 190 N.J. at 457 (recognizing reviewing court's consider

the prosecutor's summation in its entirety in order to ascertain

its "fair import").   Specifically, J.S. testified she did not have

sex with anyone other than defendant on the date of the incident

or throughout the three days prior to her examination by Peloquin.

That testimony is consistent with Peloquin's five-day window for

the viability of forensic evidence after sexual conduct, and

Crutchley's testimony that defendant was a possible source of the

semen present in J.S.'s vagina.        Thus, the scientific evidence

presented by the State, together with J.S.'s statements that

defendant was the only person she had sex with during the period

of time at issue, support the inference that defendant's sperm was

present in J.S's vagina.

     In sum, the snippets quoted by defendant in his merits brief

do not allow a full appraisal of the State's summation, which

properly drew "legitimate inferences" from the evidence adduced

at trial.   Mayberry, 52 N.J. at 437.    We, therefore, disagree with

defendant that the prosecutor's comments warranted reversal where,



                                 9                            A-4928-15T2
as   here,    they   were    not    "clearly      and    unmistakably      improper."

Papasavvas (I), 163 N.J. at 625.

                                           B.

      We review a "trial court's 'sentencing determination under a

deferential [abuse of discretion] standard of review.'"                      State v.

Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214

N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155,

169-70 (2006) ("On appellate review, the court will apply an abuse

of discretion standard to the sentencing court's explanation for

its sentencing decision within the entire range.").                       We affirm a

sentence      if:    (1)    the    trial    court       followed    the    sentencing

guidelines; (2) its findings of fact and application of aggravating

and mitigating factors were based on competent, credible evidence

in the record; and (3) the application of the law to the facts

does not "shock[] the judicial conscience."                    State v. Bolvito, 217

N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).      When reviewing a trial court's sentencing decision, we

will not "substitute [our] judgment for that of the sentencing

court."      State v. Fuentes, 217 N.J. 57, 70 (2014).

      At   sentencing,       the   court    found       aggravating    factors    two,

N.J.S.A.      2C:44-1(a)(2)        ("the        victim    of     the   offense     was

particularly vulnerable"); three, N.J.S.A. 2C:44-1(a)(3) (risk of

committing      another      offense);          four,    N.J.S.A.      2C:44-1(a)(4)

                                           10                                 A-4928-15T2
("defendant took advantage of a position of trust"); and nine,

N.J.S.A. 2C:44-1(a)(9)2 (specific and general deterrence).                       The

court found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (the

absence of a prior criminal record), and nine, N.J.S.A. 2C:44-

1(b)(9) (defendant's character and attitude "indicate that he is

unlikely to commit another offense").                The court found, generally,

the aggravating factors outweighed the mitigating factors, and

rejected defendant's request that the court impose a sentence in

the range one degree lower than the second-degree range for sexual

assault.

      In    sum,       defendant    argues     his     eight-year     sentence     is

excessive, and the court should have found mitigating factors

seven      and    nine     outweigh    aggravating       factor     nine,   thereby

supporting a five-year term of imprisonment, subject to NERA.

Defendant also claims the court should have found and weighed in

his   favor,       mitigating      factors    eight,    N.J.S.A.     2C:44-1(b)(8)

("defendant's conduct was the result of circumstances unlikely to

recur"),         and     eleven    N.J.S.A.     2C:44-1(b)(11)        (defendant's




2
 In his merits brief, defendant did not include aggravating factor
nine in the court's findings.     We note the judge amended the
judgment of conviction (JOC) on October 26, 2015 to address, among
other things, the omission of aggravating factor nine from
defendant's initial JOC.

                                         11                                 A-4928-15T2
imprisonment "would entail excessive hardship to himself or his

dependents"), further supporting a five-year sentence.

     We   first    address    defendant's      argument     that    the       court

inadequately    justified    finding     aggravating    factor     two    on    the

sexual assault conviction.         In finding this factor, the judge

recounted J.S.'s testimony that

          she was physically incapable of moving. She
          was physically incapacitated. And it was in
          that situation that this defendant took her
          to his apartment and took advantage of her.
          He knew she was drunk. He knew she was young.
          He knew that her consciousness was going in
          and out during that night.

     "[Aggravating factor two] compels 'a pragmatic assessment of

the totality of harm inflicted by the offender on the victim.'"

State v. Anthony, 443 N.J. Super. 553, 575-76 (App. Div. 2016)

(alteration in original) (quoting Lawless, 214 N.J. at 610.)                    "It

focuses on the setting of the offense itself with particular

attention to any factors that rendered the victim vulnerable or

incapable of resistance at the time of the crime."               Ibid. (quoting

Lawless, 214 N.J. at 611).

     In our view, the record supports a finding of aggravating

factor two as to defendant's sexual assault conviction where, as

here, J.S. not only was drunk and young, but also, as defendant's

stepdaughter,     she   trusted   him    to   take   care   of    her    in    that



                                    12                                    A-4928-15T2
intoxicated     state.   As    the   trial    judge   stated,    there   was

"overwhelming" trial testimony that J.S. was "severely, severely

intoxicated.     And that warrants the finding of aggravating factor

number two."     We agree.

     We part company with the trial court, however, to the extent

aggravating factor two was applied to the aggravated criminal

sexual contact conviction.      In that respect, the court "double-

counted."

     A sentencing court may not base its finding of aggravating

factor two solely on the fact that the harm contemplated by the

statute proscribing the criminal conduct occurred.            See State v.

Kromphold, 162 N.J. 345, 356-58 (2000).               A court engages in

impermissible double counting when "elements of a crime for which

a defendant is being sentenced" are "considered as aggravating

circumstances in determining that sentence."           Id. at 353 (citing

State v. Yarbough, 100 N.J. 627, 633 (1985)).             "[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).

     Here, with consent of counsel, the trial judge instructed the

jury that the elements of aggravated criminal sexual contact

included:      "at the time of the sexual contact, the victim was

physically helpless," and that defendant "knew or should have

                                     13                             A-4928-15T2
known that under the circumstances [she] was physically helpless."

Because physical helplessness is both an element of the offense

for which defendant was sentenced, and the basis for the court's

determination       that   aggravating    factor   two     applied,      the    court

impermissibly double-counted.

      We have considered and reject defendant's contention that the

court erred in finding aggravating factor four.               We are satisfied

that the court's finding of aggravating factor four is supported

here, where defendant raised J.S. as his daughter for seventeen

years and violated that "position of trust" at a time when she was

too incapacitated to resist his advances.             Contrary to defendant's

contention, aggravating factor four is not limited to a violation

of a public trust.         Cf. State v. Mosch, 214 N.J. Super. 457, 463

(App.      Div.    1986)   (recognizing    aggravating       factor      four     was

inapplicable in the apparent stranger-to-stranger burglary and

sexual assault offense for which the defendant was convicted).

      We    next    consider   defendant's      argument    that    the    court's

findings of aggravating factor three and mitigating factor nine

are   "mutually      exclusive."    If    the   two   factors      are    based    on

different criteria, they are not logically exclusive of each other.

Here, however, the court determined both factors "essentially

cancel each other out."         In reaching that conclusion, the court

found:

                                     14                                    A-4928-15T2
           I think this was a crime of opportunity. He
           would take that opportunity if presented
           again. So that would militate for me to find
           aggravating factor number three, the risk that
           the defendant would commit another offense.
           But I also believe if the opportunity does not
           present itself, that this person would not go
           out of his way to commit crime.     So in the
           [c]ourt's mind it's kind of an equipoise,
           aggravating factor three and mitigating factor
           nine, they almost cancel each other out.

     While it is possible to find contradictory factors, the trial

judge used the flip-side of the same criteria to find both factors.

Further, aggravating factor three is not supported by the evidence

here, where the present offense was an isolated incident and the

Avenel   report   indicates   "the    absence   of   a    clear   finding    of

repetitive and compulsive sexual behavior."                In light of the

record, including defendant's lack of prior criminal history,3 the

court improperly found aggravating factor three.

     Based upon the court's improper finding of aggravating factor

two on the aggravated criminal sexual contact conviction, and

aggravating factor three on both convictions, we are constrained

to vacate defendant's sentence and remand for resentencing without

consideration of those aggravating factors.              Further, on remand,

the court should set forth the aggravating and mitigating factors


3
  Subsequent to his arrest for the present offense, defendant was
arrested on separate charges resulting in: (1) a dismissed
temporary restraining order; and (2) the imposition of a fine for
a simple assault conviction.

                                     15                               A-4928-15T2
that apply on the sexual assault conviction, and those that apply

on the aggravated criminal sexual contact conviction.   Because we

are remanding for resentencing, it is unnecessary to address

defendant's contention that the sentence imposed was excessive and

we express no opinion regarding it.

     Defendant's remaining arguments are without sufficient merit

to warrant discussion in a written opinion.   R. 2:11-3(e)(2).

     Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.      We do not retain

jurisdiction.




                               16                          A-4928-15T2
