                             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                        NOT FOR PUBLICATION WITHOUT THE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-5232-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

M.A.S.,

        Defendant-Appellant.

________________________________________________________________

              Submitted February 14, 2017 – Decided July 6, 2017

              Before   Judges        Koblitz,       Rothstadt      and
              Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Indictment
              No. 11-11-1183.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jaime B. Herrera, Assistant
              Deputy Public Defender, of counsel and on
              the briefs).

              Christopher S. Porrino, Attorney General,
              attorney   for    respondent   (Jeffrey  P.
              Mongiello,   Deputy   Attorney  General, of
              counsel and on the brief).

PER CURIAM
       Defendant     M.A.S.1   appeals       from    a    judgment   of        conviction

entered   by   the    Law   Division     after       a    jury    convicted       him    of

committing two counts of second-degree of sexual assault upon

his sixteen-year-old niece, D.S.               The court sentenced him to an

aggregate term of eight-years, subject to the No Early Release

Act,   N.J.S.A.      2C:43-7.2,    Megan's          Law    restrictions,         N.J.S.A.

2C:7-1 to -23, and parole supervision for life, N.J.S.A. 2C:43-

6.4.    On appeal, defendant argues that his conviction should be

vacated because the trial court improperly permitted a Sexual

Assault Nurse Examiner (SANE) to testify to statements made by

D.S. during the nurse's examination of the young victim in which

D.S. identified defendant as her assailant and provided details

of her assault.       We agree that portions of the nurse's testimony

should not have been admitted, but we affirm, finding the error

to be harmless.

       In 2011, D.S. disclosed to a guidance counselor at school

that    defendant     had   sexually         assaulted      her.         The     guidance

counselor    contacted      the   police      who    investigated        and     arrested

defendant.     On     November    30,    2011,       a    grand   jury    returned       an

indictment charging defendant with second-degree sexual assault

of a relative between the ages of sixteen and eighteen, N.J.S.A.

1
      We use initials to preserve the confidentiality of the
victim. R. 1:38-3(c)(12).


                                         2                                       A-5232-14T1
2C:14-2(c)(3)(a) (count one); second-degree sexual assault by

force or coercion without serious injury, N.J.S.A. 2C:14-2(c)(1)

(count two); and fourth-degree criminal sexual contact, N.J.S.A.

2C:14-3(b) (count three).

       At   defendant's    ensuing      trial,     D.S.,     her   sister,     the

guidance counselor, and the SANE nurse testified on behalf of

the State.     Defendant testified on his own behalf.

       According to the testimony presented by the State, before

disclosing the assault to her guidance counselor, D.S. disclosed

defendant's conduct to others.              At the time of the assault, D.S.

lived with her grandmother, older brother, and three younger

sisters, including her sister Da.S., who was two years younger

than    her.       Defendant,     who       was   D.S.'s     father's    brother,

periodically lived in the home as well, at which time he slept

in the living room.

       According    to    D.S.,   on        February   10,    2011,     defendant

assaulted her while her sisters and their grandmother were home.

D.S. stated that she went to sleep in her bedroom, where she

slept alone, and awoke around midnight to someone touching her.

During the course of the attack, D.S. was subject to digital

penetration and defendant's unsuccessful attempt to penetrate

her with his penis.        While the attack was underway, D.S. began

"[s]haking in fear," at which point, defendant stopped, "told

                                        3                                A-5232-14T1
[her] not to tell anybody," and left the room.                D.S. estimated

the incident lasted ten minutes.

      At first, D.S. did not know who was attacking her because

she was laying on her side, facing a wall, although she assumed

it was defendant.       She was able to confirm it was defendant when

he spoke to her just prior to leaving the room, at which point

she recognized his voice.

      After defendant left, D.S. went to her sisters' room and

woke Da.S.      At trial, Da.S. stated D.S. was visibly upset, and

D.S. "told [her] about what happened between her and [their]

uncle," how "he was inappropriately touching her."              In response,

Da.S. called a different uncle and aunt to tell them what had

occurred.      She also crawled out of her bedroom window and went

to her parents'        house nearby, to inform them of defendant's

conduct.      Although the grandmother was in the house, D.S. stated

she did not wake her regarding the incident because she thought

she   would    "take   his   side."       D.S.   ultimately   wrote   a    note

explaining what happened, which Da.S. gave to their grandmother

the next morning.

      The next day at school, D.S. confided in a friend regarding

the events of the previous night.                The friend told her she

should speak to the guidance counselor, which she did.                      The

guidance counselor testified D.S. was "visibly upset, . . .

                                      4                               A-5232-14T1
withdrawn and . . . crying."              D.S. eventually disclosed the

incident, and the guidance counselor contacted the police, who

then came to the school to speak with D.S.              After speaking with

police, the guidance counselor drove D.S. to the police station,

where she was met by her grandmother.             After giving a statement

to police, the grandmother drove D.S. to the hospital where D.S.

was examined by the SANE nurse.

     At trial, the nurse explained the purpose of having SANE

nurses in the hospital is so "[e]very patient that . . . comes

in   with   sexual   assault   has       the    same   opportunity   to   have

specialized victim-centered care."             She stated that she explains

to her patients the purpose of the examination, takes an oral

history to determine how best to treat the patient, conducts a

"head-to-toe assessment [to] make sure the patient gets treated

properly," and then conducts a "detailed genital examination."

The nurse testified that her examination of D.S. revealed that

"an injury did take place inside the vagina within a recent

amount of time."

     When the prosecutor began to question the nurse about the

oral history provided to her by D.S., defense counsel objected




                                     5                               A-5232-14T1
on hearsay grounds.2          The court allowed the testimony, relying

upon    N.J.R.E.     803(c)(4):    "Statements       for    purposes     of    medical

diagnosis or treatment."           The nurse then testified as to D.S.'s

description of the incident, including D.S.'s identification of

defendant as her assailant, making sure that it was clear that

she was quoting D.S's statement to her.                    The nurse's recounting

of D.S's statement essentially mirrored D.S.'s testimony, except

that D.S. indicated to the nurse that defendant asked her if she

wanted him to "leave her alone."                D.S. nodded her head yes,

according to the nurse, and defendant "kissed her thigh and told

her . . . not to tell anyone and left the room."                     Additionally,

the nurse testified that D.S. stated that earlier in the night,

prior    to   the    incident,     defendant        asked    her    if   she     wanted

"something to help her sleep" and that her uncle "kept coming

down to her room . . . earlier in the evening."                           On cross-

examination,        defense   counsel       asked     if    these    details        were

"medically     relevant,"     to    which     the    nurse     responded,        "[n]ot

necessarily."


2
    It is not clear whether defense counsel even objected. He
stated, "Judge, I don't know. I think I might have to object."
And, when the prosecutor and judge identified the rule through
which the State sought the testimony's admission, defense
counsel said "okay." The judge allowed the testimony. For our
purposes, we assume an objection was interposed and not
withdrawn.


                                        6                                      A-5232-14T1
       During      his      closing,         defense           counsel     focused        on

inconsistencies in D.S.'s testimony and argued D.S. presented a

"spotty      and   frankly        inconsistent           story,"    and        suffered    a

"Pinocchio problem."            Among the inconsistencies he referred to

was a statement made by D.S. to the SANE nurse about whether she

was    subjected    to     any     type      of    penetration.           Counsel      also

explained to the jury that the nurse did what she was supposed

to do by "accept[ing D.S's story] as presented."                         He also relied

upon the nurse's testimony about her attempt to examine D.S.

with a speculum that caused D.S. discomfort and pain and asked

the jurors to compare that fact with D.S.'s testimony that upon

penetration by defendant she did not feel any pain.                                Counsel

also attempted to create an issue as to the assailant's identity

by    stating   that     D.S.    did   not    see        the   perpetrator,      but    only

identified him by the sound of his voice, and noted defendant

testified that D.S.'s brother and cousin arrived home at 12:30

a.m., then stating, "I'm not saying the brother did anything.

I'm not saying the cousin did anything.                          I'm saying based on

what we know right now, we just don't know."

       The prosecutor's closing focused on the nurse's testimony

only    to   the   extent       that   D.S.       made    statements      to    her    about

penetration and the evidence of injury to D.S.'s vagina.                                  The

prosecutor explained to the jury that the nurse could not tell

                                          7                                       A-5232-14T1
them   what   happened       to   D.S.,   only     that    the   "injury    that   she

discovered . . . is consistent with what D.S. told her."                           The

prosecutor did not mention statements recounted by the nurse

that   may    have    been    extraneous      to    evaluation     and     treatment,

including      D.S.'s        statement        about       defendant      being     the

perpetrator.     Defense counsel did not object to the prosecutor's

closing argument at trial.

       On appeal, defendant argues:

                     THE     TRIAL      COURT     COMMITTED
                     REVERSIBLE ERROR IN ALLOWING THE
                     SEXUAL ASSAULT NURSE EXAMINER TO
                     PRESENT       DETAILED       TESTIMONY
                     REGARDING    THE    ALLEGED   ASSAULT,
                     WHICH    WAS    HEARSAY    UNDER   THE
                     MEDICAL     EXCEPTION     RULE,    AND
                     IMPROPERLY IDENTIFIED THE ALLEGED
                     ASSAILANT.       THE    PREJUDICE   TO
                     DEFENDANT WAS COMPOUNDED WHEN THE
                     PROSECUTOR USED THIS TESTIMONY IN
                     SUMMATION AS SUBSTANTIVE EVIDENCE
                     TO   ENHANCE    D.S.'S    CREDIBILITY.
                     (PARTIALLY RAISED BELOW).

       Defendant contends that since the nurse's examination was

for "evidence-gathering purposes" and "not for the purpose of

medical diagnosis or treatment," D.S.'s hearsay statements were

not admissible under N.J.R.E. 803(c)(4).                     He relies upon the

fact that the nurse was trained in the process of collecting and

maintaining     evidence          and   during     her     "explanation      of    the




                                          8                                  A-5232-14T1
examination         of      a    patient,         care        and       treatment        were    not

mentioned."

       Defendant         also    avers      that       "even       if    this    court    were     to

determine that [the nurse] examined D.S. for the purpose of

medical diagnosis or treatment, many of the statements by D.S.

that    were       repeated       [by       the       nurse]    were       inadmissible,         and

prejudiced defendant."                 Defendant asserts "[t]his testimony was

harmful       to   defendant          due   to    the       lack    of    other      evidence      at

trial," such as "witnesses to the incident."

       "We    begin      by     acknowledging           our    deferential           standard    for

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

upheld '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)       (quoting        State      v.     Brown,      170    N.J.    138,    147

(2001)).       An abuse of discretion is "a clear error of judgment"

that is "so wide of the mark that a manifest denial of justice

resulted."         State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting

Brown, supra, 170 N.J. at 147).                        However, appellate review of a

trial court's legal conclusions is plenary.                               State v. Handy, 206

N.J. 39, 45 (2011).

       Here, the nurse's testimony regarding what D.S. told her

about    the       attack       was    hearsay.          Hearsay         is     an   out-of-court

statement "offered in evidence to prove the truth of the matter

                                                  9                                        A-5232-14T1
asserted."         N.J.R.E. 801(c).               An exception to the prohibition

against      hearsay      are     "[s]tatements               made    in    good    faith      for

purposes      of     medical      diagnosis          or       treatment        which    describe

medical history" or the cause of the declarant's symptoms "to

the    extent      that   the     statements            are    reasonably        pertinent       to

diagnosis or treatment."               N.J.R.E. 803(c)(4).

       "It   has     long       been        the    rule       in     New   Jersey      that    the

declarations of a patient as to his condition, symptoms and

feelings made to his physician for the purpose of diagnosis and

treatment are admissible in evidence as an exception to the

hearsay rule."         Cestero v. Ferrara, 57 N.J. 497, 501 (1971); see

also Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558,

586 (App. Div. 2014), aff'd as modified, 223 N.J. 245 (2015).

This   hearsay       exception         is    premised         on     the   notion      that   "the

declarant       is   more   interested             in     obtaining        a    diagnosis      and

treatment culminating in a medical recovery than [she] is in

obtaining a favorable medical opinion culminating in a legal

recovery."         Biunno, Current N.J. Rules of Evidence, comment on

N.J.R.E. 803(c)(4) (2017) (citing, In re Registrant C.A., 146

N.J. 71, 99 (1996)).

       For the exception to apply, "the patient must have believed

that the statement would enable the doctor to treat," because

"[r]eliability is based on the declarant's belief that a doctor

                                              10                                         A-5232-14T1
will   properly         treat      him    if     the       doctor      is    told       the     truth

concerning the ailment."                  State in the Interest of C.A., 201

N.J.   Super.     28,     33-34      (App.          Div.    1985).          Because          N.J.R.E.

803(c)(4)    is     based       upon      a     presumed          "treatment           motive,"       a

statement    by     a    declarant         who       "is    unaware         that       his    or    her

statements       will    enable      a    physician         to     make      a    diagnosis         and

administer        treatment"             lacks        the         requisite            degree        of

trustworthiness          to   qualify          under       this       exception.             R.S.    v.

Knighton, 125 N.J. 79, 87-88 (1991).                          For that reason, hearsay

obtained    during       evidence        gathering          and       medical      consultations

conducted        purely       in     preparation             for        litigation           remains

inadmissible.       C.A., supra, 201 N.J. Super. at 33.

       Therefore,        in     order      to       be     admissible,           the     patient's

statements must be "made in good faith for purposes of medical

diagnosis or treatment."                 State v. Pillar, 359 N.J. Super. 249,

289 (App. Div.) (quoting N.J.R.E. 803(c)(4)), certif. denied,

177 N.J. 572 (2003).               They must also "describe medical history,

or   past   or     present         symptoms,         pain,       or    sensations,            or    the

inception or general character of the cause or external source

thereof     to    the     extent         that       the    statements            are    reasonably

pertinent to diagnosis or treatment."                         Ibid.         D.S.'s statements

to the nurse identifying defendant or otherwise setting forth

the details of her assault that were "not relevant to [D.S.'s]

                                               11                                            A-5232-14T1
. . . treatment" were not admissible.               State v. McBride, 213

N.J. Super. 255, 273 (App. Div. 1986) (first citing Cestero,

supra, 57 N.J. at 501-02; and then citing C.A., supra, 201 N.J.

Super. at 33-34).

      The trial court's error here, however, was harmless.                      An

error   at   trial   will   be    considered    reversible   only    if    it   is

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

"The harmless error standard 'requires that there be some degree

of possibility that [the error] led to an unjust result.                        The

possibility must be real, one sufficient to raise a reasonable

doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached.'"          State v. Lazo, 209 N.J. 9, 26 (2012)

(alterations in original) (quoting State v. R.B., 183 N.J. 308,

330 (2005)).

      Applying that standard, we observe that prior to the nurse

testifying, D.S. testified about her identification of defendant

as her assailant, the details of her assault, and how she shared

that information with others before speaking to the nurse.                      The

other individuals included her sister and guidance counselor,

who also testified as to what D.S. told them before she spoke to

the   nurse.    Defendant        has   not   established   that   the     nurse's

repetition of the same information caused him any prejudice.                     To

the contrary, defense counsel relied on the nurse's testimony

                                       12                               A-5232-14T1
about   what     D.S.      said    to   argue       that     D.S.      gave     several

inconsistent statements and thus was not worthy of belief.

      Turning     next     to     defendant's       contention      that      he     "was

deprived of a fair trial by the [State's] improper use of" the

nurse's testimony during summation, we note that defendant did

not   object    to   the    prosecutor's      closing      statement       at      trial.

Because there was no objection at trial, we review the issue for

plain   error.       R.    2:10-2.      We   find    none.       The    prosecutor's

closing discussed the nurse's testimony only to the extent that

it was pertinent to the issue of whether or not there was injury

to the vagina indicative of penetration and whether D.S. gave

inconsistent statements, as rebuttal to the defense's summation.

      Affirmed.




                                        13                                      A-5232-14T1
