                             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                        NOT FOR PUBLICATION WITHOUT THE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-1810-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

M.E.D.,

     Defendant-Appellant.
_________________________

              Submitted May 2, 2017 – Decided July 7, 2017

              Before Judges Koblitz, Rothstadt and Sumners.

              On appeal from the Superior Court of New
              Jersey, Law Division, Ocean County, Indictment
              No. 12-04-0882.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique Moyse, Designated
              Counsel, on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Chief Appellate Attorney, of counsel; Roberta
              DiBiase, Senior Assistant Prosecutor, on the
              brief).


PER CURIAM
      Defendant M.E.D.1 was convicted of crimes connected with

sexual assaults against her younger sister, K.B.                   Defendant was

indicted with D.C., her boyfriend at the time of the assaults.

She was sentenced to an aggregate term of fifteen years in prison

with an eighty-five percent parole disqualifier pursuant to the

No Early Release Act, N.J.S.A. 2C:43-7.2.              After considering the

issues raised on appeal, we affirm defendant's convictions but

remand for resentencing and a hearing regarding the monetary

sanction.

      K.B. testified to the following facts at trial.                At the time

of trial, she was fifteen years old.              In the summer of 2010, she

was twelve years old and lived with her "surrogate grandmother"

in Jackson.    Two years earlier, K.B. had lived with defendant, who

was   about   fourteen    years    older,    in   defendant's      apartment    in

Lakewood for almost a year.         K.B. visited defendant "on weekends,

usually every other week" and sometimes after school during the

week.    Every   few     weeks    during    the   summer,   K.B.    stayed   with

defendant "for a week or two."

      While visiting defendant, K.B. met D.C., defendant's thirty-

year-old boyfriend.       In K.B.'s presence, D.C. suggested defendant

teach K.B. how to engage in safe sex so that K.B. could "have an



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

                                       2                                 A-1810-14T3
outlet with them."     "[Defendant] was very agreeable with what

[D.C.] had suggested."    Defendant and D.C. told K.B. that she was

not allowed to tell anyone about their sexual encounters or "they

wouldn't love [her] anymore, wouldn't talk to [her], [and] they'd

say things to [her] mother to get [her] in trouble."

     K.B. had joint sexual encounters with D.C. and defendant on

three occasions in the summer of 2010 at defendant's apartment in

Lakewood.   During the first encounter, D.C. and defendant engaged

in sexual intercourse on the bed while K.B. sat in a chair facing

the bed and watched.     D.C. and defendant instructed K.B. to take

her pants off and touch herself.       K.B. followed their directions,

took off her pants and inserted her fingers into her vagina.

     During the two subsequent encounters, defendant and D.C.

performed vaginal and oral sex in front of K.B.         Defendant and

D.C. taught K.B. "how to use sex toys such as a vibrator and a

dildo."   Defendant held K.B.'s legs open while D.C. inserted a sex

toy into K.B.'s vagina.       Defendant and K.B. also took turns

performing oral sex on D.C.

     K.B. also engaged in sexual conduct with defendant two times

when D.C. was not present.     Defendant masturbated while watching

pornography.    Defendant "had a dildo that also had a built-in

vibrator mechanism on the top of it."      Defendant inserted the sex

toy into K.B.'s vagina.      K.B. testified, "When I was hesitant


                                   3                           A-1810-14T3
about necessarily how far to stick it in, [defendant] came over

and said, here, let me show you how far you should, and then pushed

it in further into my vagina."

       On February 13, 2012, a Division of Youth and Family Services

(Division)2 worker visited K.B.'s school to speak with K.B. about

her "safety."      The worker testified that during the meeting, K.B.

disclosed that "her sister's boyfriend raped her multiple times

and that her sister was present during some of those incidents."

The worker testified that "[K.B.] seemed relieved to be able to

tell somebody, get it off her chest."

       Defendant, who did not testify, admitted her involvement in

a videotaped statement she gave to the police.            She stated on the

tape that when K.B. was eleven, K.B. said she was sexually active

and asked defendant questions about sex.          Defendant said that she

was concerned and wanted to educate K.B. about safe sex. Defendant

admitted to her part in the sexual activity alleged by K.B.

       Defendant   and   D.C.   were   indicted   in    three    counts    with

committing first-degree aggravated sexual assault against K.B.

when she was under thirteen years old, between June and August

2010    in   Lakewood,   N.J.S.A.   2C:14-2(a)(1)      (counts   one   through

three).      Count four charged defendant alone with the same crime.

She was also charged in count five with the same crime between


2
    Currently the Division of Child Protection and Permanency.

                                       4                               A-1810-14T3
August and September 2010.      Counts six through eight charged

defendant and D.C. with three counts of second-degree sexual

assault against K.B. between June and August 2010 in Lakewood,

N.J.S.A. 2C:14-2(b).   Counts nine through twelve charged defendant

alone with second-degree endangering the welfare of K.B. between

June and August 2010 in Lakewood, N.J.S.A. 2C:24-4(a).        Count

thirteen charged defendant with the same crime between August and

September 2010.   The jury convicted defendant of all charges and

she was given concurrent sentences.3

     Defendant raises the following issue on appeal:

          POINT ONE: THE TRIAL COURT VIOLATED N.J.R.E.
          404(b) BY ALLOWING A DYFS WORKER TO TESTIFY
          THAT SHE INTERVIEWED K.B. ABOUT HER SAFETY,
          DEPRIVING [DEFENDANT] OF HER RIGHT TO A FAIR
          TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING
          INSTRUCTION WAS ERROR. (Not Raised Below)

          POINT TWO: THE TRIAL COURT'S ERRONEOUS JURY
          CHARGES ON ENDANGERING THE WELFARE OF A CHILD
          DEPRIVED [DEFENDANT] OF HER RIGHT TO DUE
          PROCESS AND A FAIR TRIAL. (U.S. Const. Amends.
          V, VI and XIV; N.J. Const. (1947), Art. I [¶]1,
          9, and 10.)

          POINT THREE: THE TRIAL COURT ABUSED ITS
          DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE


3
 D.C. was tried separately. Unlike defendant, D.C. admitted only
one incident of sexual activity to the police. The jury evidently
did not believe much of K.B.'s testimony about D.C.'s actions
because he was acquitted on most counts. On appeal, we reversed
his conviction, due to errors in the jury charge and verdict sheet,
which mandated reversal and made a retrial impossible without
violating Double Jeopardy principles. State v. D.C., No. A-2825-
14T4 (App. Div. June 19, 2017).

                                 5                          A-1810-14T3
               SENTENCE AND A $14,000.00 SEX CRIMES VICTIM
               TREATMENT FUND PENALTY.

                                         I

       Defendant argues as plain error that the testimony by the

Division worker led the jury to assume that defendant was involved

in an unsafe situation that caused the caseworker to meet with

K.B.     Defendant argues that the trial court failed to perform a

Cofield analysis "to avoid the over-use of extrinsic evidence of

other crimes or wrongs."              State v. Cofield, 127 N.J. 328, 338

(1992); N.J.R.E. 404(b).

       The caseworker's testimony was short and constituted "fresh

complaint" evidence.       See State v. R.K., 220 N.J. 444, 455 (2015).

It would have been unreasonable for a jury to assume that defendant

was responsible for creating the concerns that led the Division

worker    to    speak   with   K.B.    because   K.B.   was   not   living   with

defendant at that time.         Defense counsel and the prosecutor asked

questions to clarify that the caseworker's initial reason for the

inquiry was unrelated to defendant.

       When reviewing a trial judge's ruling on the admissibility

of evidence, we must determine whether there has been an abuse of

discretion.      Brenman v. Demello, 191 N.J. 18, 31 (2007).           When the

defendant failed to object to the admission of testimony, this

court reviews the admission of such evidence "for plain error,

only reversing if the error is 'clearly capable of producing an

                                         6                              A-1810-14T3
unjust result.'"     State v. Rose, 206 N.J. 141, 157 (2011) (quoting

R. 2:10-2).

     Pursuant to N.J.R.E. 403, evidence that is relevant may be

inadmissible if the risk of prejudice substantially outweighs its

probative   value.     "In   relevance    determinations,   the   analysis

focuses on 'the logical connection between the proffered evidence

and a fact in issue.'"    State v. Williams, 190 N.J. 114, 123 (2007)

(quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)).

"The standard for the requisite connection is generous: if the

evidence makes a desired inference more probable than it would be

if the evidence were not admitted, then the required logical

connection has been satisfied."          Ibid.   (citing State v. Davis,

96 N.J. 611, 619 (1984)).

     The caseworker's testimony was relevant as it provided the

jury with an explanation as to how the conduct became known to the

authorities.     The risk of prejudice was minimal because the

caseworker told the jury that the Division was not investigating

any mistreatment of K.B. by defendant.

     After the caseworker's testimony, the trial judge addressed

the jury regarding the limited purpose of her testimony, stating:

            The only reason that evidence is permitted is
            to negate the inference that K.B. failed to
            confide in anyone about the sexual offense.
            In other words, the narrow purpose of the
            fresh complaint rule is to allow the State to
            introduce   such  evidence   to  negate   any

                                    7                              A-1810-14T3
           inference that K.B. failed to tell anyone
           about the sexual offense and that, therefore,
           her later assertion could not be believed.

      The testimony was not unfairly prejudicial to defendant and

does not support defendant's argument, raised for the first time

on appeal.    N.J.R.E. 404(b), which regulates the admissibility of

other crimes or bad acts, was not applicable.

                                 II

      Defendant argues next that the trial court failed to properly

instruct the jury regarding the charge of endangering the welfare

of a child.   Pursuant to N.J.S.A. 2C:24-4(a), defendant must have

had a legal duty to care for K.B. or assumed responsibility for

the care of K.B. to be guilty of second-degree endangering the

welfare of a child.      Defendant contends that the trial court

mistakenly refused to include language in its charge pursuant to

State v. Galloway, 133 N.J. 631 (1993) and State v. McInerney, 428

N.J. Super. 432 (App. Div. 2012), certif. denied, 214 N.J. 175

(2013), which would have clarified that defendant's relationship

with K.B. did not trigger the requisite duty of care.

      Additionally, defendant argues that further harm was caused

by the court when it agreed to instruct the jury that evidence of

K.B.'s prior sexual activity could be used as evidence of the lack

of intent to debauch the morals of the child and then did not do

so.


                                  8                         A-1810-14T3
      The charge of second-degree endangerment of a child applies

only to a "person having the 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).          In Galloway, our Supreme Court distinguished

between those that assume a "general and ongoing responsibility"

for   the    supervision      of   the    child       and   those   who     only    assume

"temporary, brief, or occasional caretaking functions."                       Galloway,

supra,      133   N.J.   at   661.       In       Galloway,   the   Court    held      that

occasional caretakers would be "chargeable with child endangerment

in the fourth degree."             Id. at 662.          This type of supervision

includes infrequent and irregular babysitting.                      Ibid.

      Interpreting the Legislature's intent, the Court in Galloway

also pointed out:

              the third-degree crime of child endangerment
              should apply to those who have assumed a
              general and ongoing responsibility for the
              care of the child.    That responsibility may
              be legal and formal or it may arise from
              informal arrangements. It may be based on a
              parental relationship, legal custody, or on
              less-structured relations; or it may arise
              from cohabitation with the child's parent.
              The actor, however, must have established a
              continuing or regular supervisory or caretaker
              relationship with the child that would justify
              the harsher penalties of the third-degree
              crime of child endangerment under N.J.S.A.
              2C:24-4.

              [Id. at 661.]




                                              9                                    A-1810-14T3
     "[T]he profound harm that can be inflicted on a child by one

who holds a position of trust is what propels the offense of

endangering from a third- to a second-degree offense."      State v.

Sumulikoski, 221 N.J. 93, 108 (2015).

           The State must prove the following elements
           beyond a reasonable doubt to convict a person
           of second-degree endangerment: (1) the victim
           was a child; (2) defendant knowingly engaged
           in sexual conduct, which would impair or
           debauch the morals of a child; and (3)
           defendant (a) had a legal duty for the care
           of the child or (b) had assumed responsibility
           for the care of the child.

           [Ibid.   (citing N.J.S.A. 2C:24-4(a)(1)).]

"The considerations under N.J.S.A. 2C:24-4(a) focus more on the

dependence and trust the child places in the adult."      McInerney,

supra, 428 N.J. Super. at 449.

     "[C]lear and correct jury charges are essential to a fair

trial."   State v. Brown, 138 N.J. 481, 522 (1994).     In evaluating

whether claimed defects in the jury instructions rise to the level

of reversible error, we must consider those defects within the

overall context of the charge as a whole.      State v. Simon, 161

N.J. 416, 477 (1999).    The alleged error must be "viewed in the

totality of the entire charge, not in isolation."           State v.

Chapland, 187 N.J. 275, 289 (2006).   If, upon reviewing the charge

as a whole, the reviewing court finds that prejudicial error did

not occur, then the jury's verdict must stand.   State v. Coruzzi,


                                 10                           A-1810-14T3
189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531

(1983).

     Regarding the legal duty for care of a child, the court

instructed the jury:

          The final fourth element that the State must
          prove beyond a reasonable doubt is that the
          defendant had a legal duty for the care of the
          child, or assumed responsibility for the care
          of the child. A person having a legal duty
          for the care of a child, or who has assumed
          responsibility for the care of the child,
          includes a natural parent, adoptive parent,
          foster parent, stepparent, or any other person
          who has assumed responsibility for the care,
          custody or control of a child, or upon whom
          there is a legal duty for such care.

          A person who has assumed the responsibility
          for the care of the child includes any person
          who   assumes    a   general    and    ongoing
          responsibility   for   the   child   and   who
          establishes a continual – continuing or
          regular     supervisory     or      caretaking
          relationship with the child.

     The court then proceeded to instruct the jury on the lesser-

included offense of third-degree endangering the welfare of a

child, which does not require proof that the defendant had a legal

duty of care of the child.

     Based   on   K.B.'s   testimony   and   defendant's   statement,

defendant was a trusted figure K.B. looked up to, and who cared

for K.B.'s well-being.     K.B. was not living with defendant at the

time of the sexual encounters, however she was consistently staying

at defendant's home after school, on weekends, and for weeks during

                                  11                          A-1810-14T3
the summers.    Defendant had been the primary caretaker when K.B.

lived with her.     K.B. testified, "I just more listened to her, you

know, no matter what she said to me.         I trusted her guidance. And,

you know, I trusted everything she said to me and everything she

told me to do."        Defendant stated on the videotape that K.B.

"look[ed] up to [her] more as a mother."

      The instruction given by the court is consistent with Galloway

and Sumulikoski in defining legal duty and assumed responsibility.

In McInerney, the trial court instructed the jury with the same

model charge, and we determined that the charge "clearly provided

the   jurors   with    adequate     direction         on    Galloway's      critical

distinction    between   persons     who   assume          'general   and   ongoing

responsibility' for 'regular supervision or caretaking' and those

who   assume   'a     temporary,    brief,       or    occasional        caretaking

function.'"       McInerney,   supra,      428    N.J.       Super.   at    444-45.

Defendant's responsibility over K.B. went beyond just temporary

and occasional caretaking.         K.B. habitually stayed at her house,

and had lived with defendant for a year in the past. K.B. testified

that she trusted defendant completely.                 Defendant's videotaped

admissions, in which she also claimed her intention was to protect

and benefit K.B., rather than being exculpatory, was further

evidence of her assumption of a caretaking role.




                                     12                                      A-1810-14T3
     Defense counsel in summation did not deny the sexual activity

occurred, as defendant admitted on the videotape shown to the

jury.   Rather, counsel argued that co-defendant was the true

culprit and defendant was only trying to protect K.B.      On appeal

defendant argues that the court should have charged the jury that

K.B.'s prior sexual activity, as alleged in defendant's statement,

showed that defendant was trying to protect K.B. by teaching her

about sex.   We have held, however, that an intent to debauch the

morals of a child is not necessary.   We stated:

          a conviction for a violation of N.J.S.A.
          2C:24-4(a) does not require proof that a
          defendant knew that his sexual conduct would
          impair or debauch the victim's morals.
          Instead, the State must prove, or a defendant
          must admit, only that he knowingly engaged in
          sexual conduct with a child below the age of
          sixteen and that such conduct had the capacity
          to impair or debauch the morals of a child.

          [State v. Bryant, 419 N.J. Super. 15, 17-18
          (App. Div. 2011).]

K.B.'s prior sexual activity, if it occurred, is irrelevant to the

offense charged. The trial court's charge, when viewed as a whole,

did not contain prejudicial error.

                               III

     When sentencing defendant, the court found mitigating factors

four, that there were grounds to excuse or justify defendant's

conduct; seven, that the defendant had no prior criminal history;

and eight, that defendant's conduct was the result of circumstances

                               13                            A-1810-14T3
unlikely to recur.   N.J.S.A. 2C:44-1(b) (4), (7) & (8).    The court

found aggravating factors one, the nature and circumstances of the

offense; two, the seriousness of the harm inflicted on the victim;

and nine, the need to deter defendant and others from violating

the law.   N.J.S.A. 2C:44-1(a) (1), (2) & (9).    Defendant argues

that the court erred in its analysis and balancing of aggravating

and mitigating factors and improperly imposed a financial penalty

upon defendant.   We agree with some of defendant's arguments and

reverse and remand for resentencing.

     We apply a deferential standard of review to the sentencing

court's determination. State v. Bolvito, 217 N.J. 221, 228 (2014).

           Appellate courts must affirm the sentence of
           a trial court unless: (1) the sentencing
           guidelines were violated; (2) the findings of
           aggravating and mitigating factors were not
           "based upon competent credible evidence in the
           record;" or (3) "the application of the
           guidelines to the facts" of the case "shock[s]
           the judicial conscience."

           [Id. at 228 (quoting State v. Roth, 95 N.J.
           334, 364-65 (1984)).]

     The court erred in using the age of the victim as support for

aggravating factor two, when the victim's age is also an element

of the crime.   See State v. Fuentes, 217 N.J. 57, 79-81 (2014).

     Aggravating factor two states:

           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

                                14                            A-1810-14T3
             particularly vulnerable or incapable of
             resistance due to advanced age, ill-health,
             or extreme youth, or was for any other reason
             substantially incapable of exercising normal
             physical or mental power of resistance.

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

       The trial court applied this factor based on "the seriousness

of    the   harm    inflicted   upon    the    victim,   and    that    she    was

particularly vulnerable because of her situation of extreme youth

at the time."         One element of first-degree aggravated sexual

assault is that the victim is less than thirteen years old.

N.J.S.A. 2C:14-2(a)(1).         K.B. was twelve.       "[A] sentencing court

must scrupulously avoid 'double-counting' facts that establish the

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

75.    Considering the victim's age is only permissible when the

victim is much younger than is required to be guilty of the crime.

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

(finding that the "extreme youth" of the four-year-old victim was

an appropriate aggravating factor).

       Next, defendant contends that the court erred in finding the

aggravating factor of deterrence, N.J.S.A. 2C:44-1(a)(9), and the

mitigating factor that the conduct is unlikely to recur, N.J.S.A.

2C:44-1(b)(8),       because    the    two    rarely   appear   in     the    same

sentencing.        Given the unusual situation here, where defendant

will not be in proximity to K.B. in the future, we accept the


                                       15                                A-1810-14T3
court's explanation that this is one of those rare situations

where both factors are appropriately applied.             See Fuentes, supra,

217 N.J. at 78-80.

       Defendant argues that the court erred in imposing a $14,000

Sex    Crime   Victim   Treatment     Fund    penalty   (SCVTF)     pursuant    to

N.J.S.A. 2C:14-10 because the court failed to consider the nature

of the offense and defendant's ability to pay as required by

Bolvito, supra, 217 N.J. at 221.             The State acknowledges that the

court did not specifically address defendant's ability to pay the

$14,000 penalty.

       A sentencing court may impose an SCVTF penalty against a

defendant in any amount between a nominal figure and the upper

limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the

offense at issue.        Bolvito, supra, 217 N.J. at 233.             In making

that    determination,      a    sentencing      "court    should     begin     by

considering     the     nature   of   the     offense   when    determining      a

defendant's SCVTF penalty within the statutory range."                Ibid.     In

particular, when setting an SCVTF penalty, courts "should consider

the defendant's ability to pay the amount assessed."                Id. at 234.

"If a substantial penalty is assessed against a defendant who has

no realistic prospect of satisfying it, that penalty is destined

to become an unsatisfied judgment . . . ."              Ibid.   In determining

a defendant's ability to pay, "the sentencing court should look


                                       16                                A-1810-14T3
beyond   the    defendant's     current    assets   and    anticipated    income

during the period of incarceration."            Ibid.     Upon sentencing, the

"court should provide a statement of reasons when it sets a

defendant's SCVTF penalty within the statutory parameters," which

"will apprise the parties, the victim, and the public and will

facilitate appellate review."             Id. at 235.      The court did not

supply such a statement of reasons here.

    We thus remand for resentencing without consideration of

aggravating factor two.         The sentencing court should also state

the reasons for the imposition of any SCVTF penalty imposed,

including      within   those   reasons    an   assessment     of   defendant's

ability to pay.

    The convictions are affirmed and the sentence is reversed and

remanded for resentencing.        We do not retain jurisdiction.




                                     17                                  A-1810-14T3
