                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0898-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DYLIN D. NICKENS,

     Defendant-Appellant.
_________________________

                   Submitted December 4, 2018 – Decided October 4, 2019

                   Before Judges Suter and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 16-12-3484.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Tamar Y. Lerer, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Patrick D. Isbill, Assistant
                   Prosecutor, of counsel and on the brief).

          The opinion of the court was delivered by

SUTER, J.A.D.
      Defendant Dylin D. Nickens appeals his conviction and sentence arising

from his participation as an accomplice in a sexual assault. He contends the

prosecutor's summation improperly shifted the burden of proof to him and

commented on his right to remain silent. He argues the court's instruction to the

jury on "consent" also shifted the burden of proof to him, and that the witness

tampering instruction allowed for a non-unanimous verdict. Defendant requests

resentencing because of the trial court's analysis of the aggravating and

mitigating factors. We affirm defendant's convictions and sentence.

      Defendant was indicted in 2016 for second-degree sexual assault as an

accomplice, N.J.S.A. 2C:14-2(c)(1), N.J.S.A 2C:2-6; conspiracy to commit

sexual assault, N.J.S.A. 2C:14-2(c)(1), N.J.S.A. 2C:5-2; third-degree burglary,

N.J.S.A. 2C:18-2(a)(1); and third-degree witness tampering, N.J.S.A. 2C:28-

5(a). Following the denial of his motion to suppress the statement he gave to

the police, he was convicted by a jury in June 2017 on all counts. He was

sentenced on the sexual assault charge to an eight-year term subject to an eighty-

five percent period of parole ineligibility under the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. He received four-year sentences on the burglary

and witness tampering counts. The burglary sentence was concurrent to the

sexual assault count. The witness tampering sentence was consecutive to the


                                                                          A-0898-17T4
                                        2
assault count, resulting in an aggregate term of twelve years with a 6.8 year

period of parole ineligibility.

                                        I.
       Mary1 first met defendant on a dating website called "Plenty of Fish," and

the two exchanged phone numbers. They met at defendant's apartment in mid-

September 2016 for sex. Defendant's twin brother, Devin, was sitting outside

when Mary arrived and he said hello to her. Mary and defendant had sex that

night before she left on a trip.

       She received text messages from both defendant and Devin while she was

away. She texted to Devin that she was not interested in him and would not "go

from one brother to the next." In response to Devin's entreaties to "hang o ut,"

she responded that she could not "chill with [him]" because she "had sex with

[his] brother." She texted him that they could not be friends and then did not

respond to his further messages.

       Mary made plans to meet defendant when she returned from Florida.

Mary did not want Devin to be present. It had been "a little awkward" seeing

Devin the first time and she was told he did not live there. Defendant told Mary

that Devin was in Atlantic City.


1
    A pseudonym is used to protect the privacy of the victim. R. 1:38-3(c)(12).
                                                                         A-0898-17T4
                                        3
      On September 20, 2016, Mary arrived at defendant's apartment around

10:00 to 11:00 p.m. She parked her car, put her purse in the trunk, locked it and

took her keys and phone with her. It was dark inside the apartment, but the

television was on. Defendant told her to put her phone and car keys on the

kitchen table because the bedside window sill was wet. She did not see anyone

else there.

      Mary testified that defendant did not remember at first that he had told her

his brother had gone to Atlantic City. When she asked why he did not go there

too, defendant said he had "work and stuff." Defendant would not let Mary use

the bathroom, saying it was "messy."         He turned on music, went into the

bathroom to clean it and closed the door.        After he came out, she "heard

something drop" in the bathroom. Threatening to leave, defendant let Mary look

in the bathroom, but no one was there.

      Defendant and Mary had oral sex in the bedroom. He kept the music

playing at its "highest maximum volume." Defendant told Mary that his "mouth

was dry" and went to the kitchen "to get something to drink."                They

recommenced having oral sex.      Mary testified that defendant "just popped up

and walked into the bathroom" for a few seconds and came back. Mary was not

aware that it was Devin—not defendant—who had walked out of the bathroom


                                                                          A-0898-17T4
                                         4
and started having oral sex with her. It was not until he "got up and laid on the

bed and tried to cover himself with the pillow," that she saw "the extra tattoos

and noticed the different haircut[]" and realized it was Devin, not defendant.

      She promptly dressed and grabbed her phone from the kitchen, but her car

keys were missing. She went outside and saw defendant "coming out of [her]

car." The door was open, the lights were on and her purse was on the passenger

seat. Defendant was trying to "duck behind the car so [Mary] wouldn't see him."

      She confronted defendant and called 9-1-1, because she believed they had

robbed her. She did not mention the sexual assault because she was "scared"

and it was "embarrassing." Her focus was on "[her] car not being stolen or

anything in [her] car being stolen." The police came to the scene. Mary did not

want to press charges.

      Shortly after she left, defendant texted her on the "Plenty of Fish" website.

He denied trying to rob her stating "[a]ll we did was switch on you to get some

pussy. I'm being honest." She responded that he should leave her alone.

      When the police called Mary the next day, she gave them a full account

of the incident in a taped statement and copies of the messages between her and

defendant. She identified defendant and Devin in photographs. She did not file

charges against the brothers.


                                                                           A-0898-17T4
                                        5
      Defendant called Mary a few days later. He asked her to drop the charges

because "[his] brother [was] locked up" but she told him, "[she] never pressed

charges." Mary hung up. She received additional messages from defendant

telling her that she "should [have] never sent the cop the screen shot of the

conversation. It wasn't none of his business." In another, he stated "I'm going

to prison because of you . . . . [Y]ou're the one who called the cops. Nobody

else. It's your f--king fault . . . we dealing with this and that he locked up." She

reported all this to the police.

      On appeal, defendant raises these issues:

             POINT I

             THE      PROSECUTOR'S       SUMMATION
             INAPPROPRIATELY SHIFTED THE BURDEN OF
             PROOF AND COMMENTED ON DEFENDANT'S
             SILENCE.  THIS   IMPROPER    ARGUMENT
             NECESSITATES REVERSAL OF DEFENDANT'S
             CONVICTIONS. (NOT RAISED BELOW)

             POINT II

             THE JURY INSTRUCTION ON THE ISSUE OF
             CONSENT—THE ONLY CONTESTED ISSUE IN
             THE CASE—UNCONSTITUTIONALLY SHIFTED
             THE BURDEN OF PROOF TO DEFENDANT TO
             SHOW CONSENT. (NOT RAISED BELOW)




                                                                            A-0898-17T4
                                         6
             POINT III

             THE JURY INSTRUCTION ON WITNESS
             TAMPERING PERMITTED THE JURY TO RETURN
             A NON-UNANIMOUS VERDICT. THEREFORE,
             DEFENDANT'S CONVICTION FOR WITNESS
             TAMPERING MUST BE VACATED. (NOT RAISED
             BELOW)

             POINT IV

             THE TRIAL COURT ERRONEOUSLY FOUND
             SEVERAL AGGRAVATING FACTORS THAT HAD
             NO BASIS IN THE RECORD AND DISMISSED
             WITHOUT    CONSIDERATION    MITIGATING
             FACTORS THAT WERE BASED IN THE RECORD.
             THEREFORE, THE SENTENCE MUST BE
             VACATED AND THE CASE REMANDED FOR
             RESENTENCING.

                                       II.

                                       A.

       Defendant argues the prosecutor's summation violated his constitutional

rights by shifting the burden of proof and by commenting on his right to silence.

He contends the prosecutor should not have commented to the jury about what

defendant did not say to the police during his statement to them.

       Following defendant's arrest, he waived his Miranda2 rights and gave a

taped statement to the police where he said he did not know Mary. He asserted


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-0898-17T4
                                       7
that someone he knew as "Crystal" had come over to his apartment on the night

of September 20, 2016. Defendant denied having a user name on the "Plenty of

Fish" website and he denied texting Mary. His interview with the police ended

when he indicated he did not want it to continue.

      Prior to trial, defendant moved to suppress his oral statement, but the

motion was denied. His entire statement was played to the jury, including the

end when he told the police he just wanted to "cut the interview."

      The prosecutor's summation to the jury commented on the inconsistency

between defendant's statement to the police, that he did not know Mary, and his

defense at trial that Mary consented to having sex with defendant and his

brother. The prosecutor argued:

            [T]he defendant didn't say in his videotaped statement
            that Devin was there to have consensual sex with
            [Mary]. Right? You saw and heard the defendant's
            videotaped statement.       What did he say in his
            videotaped statement? He said he didn't even know
            who [Mary] was, let alone have a relationship with her.
            He didn't even know who she was, so . . . how could his
            position be that she was having consensual sex with
            him . . . when he can't even admit he knew who [Mary]
            was? Let alone that she was there to have sex with both
            of them.

            If [Mary] was there to have sex with both of them,
            wouldn't the defendant have just said that in his taped
            statement? He didn't say that. What he said in his
            statement was something totally different. Was that I

                                                                       A-0898-17T4
                                       8
            don't even know her….I didn't do anything with her. I
            didn't have any type of a relationship with her. He
            didn't say that she was there to have consensual sex
            with both of them.

Later in the summation, the prosecutor argued:

            So what generally does the defendant say in his
            videotaped statement? Basically . . . he never says . . .
            [Mary] was here to have sex with me. I had consensual
            sex with her and she also had consensual sex with
            Devin. He does not say that.

            What he says is I don't know [Mary]. Didn't have a
            relationship with her and don't even know her. I was
            talking to some girl named Crystal. Yeah. That text
            that Detective Lyons showed me, yeah. That text
            exchange on September 20 th. Yeah, that was me, but I
            wasn't talking to anybody named [Mary] . . . .

            He's not saying how the hell am I being charged with
            sexual assault? I'm totally innocent of that. There's no
            way that I could be guilty of a sexual assault. I've never
            had sex with somebody without their consent. I didn't
            help anybody else to have sex with somebody else
            without their consent. He's not saying that.

      Defendant's attorney did not object to the prosecutor's summation.

Because there was no objection, we review this issue under a plain error

standard, meaning our inquiry is to determine whether this was an error that was

"clearly capable of producing an unjust result." R. 2:10-2; see State v. Macon,

57 N.J. 325, 336 (1971). Under that standard, reversal of defendant's conviction

is required if there was error "sufficient to raise a reasonable doubt as to whether


                                                                            A-0898-17T4
                                         9
[it] led the jury to a result it otherwise might not have reached." State v. Green,

447 N.J. Super. 317, 325 (App. Div. 2016) (quoting Macon, 57 N.J. at 336).

Reversal is not warranted where the alleged error is "harmless." State v. J.R.,

227 N.J. 393, 417 (2017).

      Defendant relies on State v. Muhammad, 182 N.J. 551 (2005) to support

his argument that the prosecutor's comments in summation violated his right to

remain silent. In Muhammad, the defendant told the police that the victim had

been harassing his family members. Id. at 560. When she contradicted this,

insisting he had forced her to have sex with him, the police sergeant told the

defendant he could not leave because they would need to conduct an

investigation. Id. at 560-61. At that point, the defendant did not say anything

further to the police.

      During the trial, defendant's attorney suggested the victim was "a

prostitute with whom defendant had a consensual sexual encounter." Id. at 562.

The prosecutor commented throughout the trial that the defendant had not told

this story to the police when he was at the station. Id. at 562-64.

      The Court found that the prosecutor's comments were "direct references

to defendant's silence."    Id. at 565.     "Making reference at trial to what a

defendant did not say to the police is commenting on his silence." Ibid. The


                                                                           A-0898-17T4
                                       10
Court found the State violated the defendant's state law right against self-

incrimination because the prosecutor had not just pointed out inconsistencies;

the prosecutor "called for the jury to reject the consent defense because

defendant remained silent when he had the opportunity to present it to the

police." Id. at 566.

      Here, defendant argues that because the prosecutor pointed out in

summation what defendant did not say to the police during his statement to them,

that this violated Muhammad by commenting on defendant's right to silence.

We do not agree that Muhammad is violated in this case.

      In State v. Tucker, 190 N.J. 183, 190 (2007), the defendant gave more

than one post-Miranda statement to the police. At trial, the prosecutor elicited

discrepancies between the statements. The Court held "[a] defendant's right to

remain silent is not violated when the State cross-examines a defendant on the

differences between a post-Miranda statement and testimony at trial." Id. at 189.

The Court observed that the defendant who agreed "to give a statement, . . . has

not remained silent, but has spoken." Id. at 189. It concluded that "the State's

pointing out of inconsistencies in defendant's statements and other evidence at

trial did not constitute an unconstitutional comment on silence." Id. at 190.




                                                                         A-0898-17T4
                                      11
        The decision in State v. Kucinski, 227 N.J. 603 (2017) reaffirmed this. In

that case, the Court found defendant waived his right to remain silent and then

gave a statement, even though he had refused to answer certain questions during

the interview. Id. at 623. Because the Court found the defendant waived his

right to remain silent, "cross-examination [of the defendant] regarding facts to

which he testified at trial, but omitted in his statement to the police, was proper."

Ibid.

        Here, defendant did not testify at trial, but he gave a statement to the

police, post-Miranda, where he said he did not know Mary or text her. He

insisted another woman named Crystal was at his apartment.                Defendant

eventually did stop the interview, but the prosecutor was not precluded from

pointing out inconsistencies between defendant's defense theory at trial (consent

by Mary) and his statement to the police (he did not know or text Mary). This

was not a comment on defendant's silence after he stopped the interview; it was

about the inconsistencies in defendant's explanations. Defense counsel's "failure

to object suggest[ed] that defense counsel did not believe the remarks were

prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

        Considered in the context of the State's overall proofs, the prosecutor's

summation did not constitute plain error.        The State's proofs included text


                                                                             A-0898-17T4
                                        12
messages between Mary, defendant and defendant's brother. She made clear in

her text to defendant's brother that she was not interested in him. There was a

text message between the defendant and Mary after the incident in which

defendant admitted making the switch. There were texts and phone calls by

defendant attempting to persuade Mary not to testify. That Mary saw defendant

in her car and her purse was no longer locked in the truck, lent credibility to her

version of events.

      The State's summation did not shift the burden of proof to defendant. The

prosecutor continually reminded the jury that the State had the burden of proof

on all the charges. The court's instructions to the jury were clear as well, that

the State, alone, had the burden of proof in the trial.

      There was no objection by defense counsel when defendant's complete

statement to the police was played to the jury, including the part where the

interview was stopped. The jury heard:

            Det. Lyons:         Do you remember the girl that was
                                there?

            [Defendant]:        I'm saying I would like to cut the
                                interview time. I want to just cut it.

            Det. Lyons:         You don't want to talk to me
                                anymore?

            [Defendant]:        Yeah, (indiscernible).

                                                                           A-0898-17T4
                                        13
              Det. Lyons:        (Indiscernible).

              [Defendant]:       Un-huh.

       In State v. Feaster, 156 N.J. 1, 73-77 (1998), the Court considered whether

a jury should be permitted to hear the defendant invoke his right to silence. The

Court stated that there were circumstances where such "testimony is essential to

the complete presentation of the witness's testimony and its omission would be

likely to mislead or confuse the jury." Id. at 76. In that situation, the court must

give a cautionary instruction. Ibid. Generally, however, the Court noted "trial

courts should endeavor to excise any reference to a criminal defendant's right to

invocate his right to counsel." Id. at 75.

       Here, although there was no cautionary instruction, we do not find there

was plain error. The exchange by defendant that terminated the interview was

very brief, the prosecutor did not comment on it during summation, defendant's

attorney never objected and the court instructed the jury that defendant had the

right to not testify at trial.

                                         B.

       Defendant argues the court's jury instruction on sexual assault and consent

improperly placed the burden on him of proving he did not reasonably believe,

or could not have reasonably believed, that Mary consented. He contends the

                                                                            A-0898-17T4
                                        14
instruction focused on whether defendant reasonably believed that Mary

consented.

      We conclude the jury charge was clear in instructing the State had the

burden of proof on every element. The judge instructed the State had to prove

beyond a reasonable doubt that a sexual assault occurred, and listed the required

elements: that the brother committed an act of sexual penetration, acted

knowingly, used physical force or coercion and the victim did not sustain severe

personal injury. The trial court was clear that the State had to prove defendant's

brother used physical force or coercion, and instructed the jury it had to decide

"whether [the brother's] alleged act of penetration was undertaken in

circumstances that led [the brother] reasonably to believe that the victim had

freely given affirmative permission to the specific act of sexual penetration."

The court instructed that if there were "evidence to suggest that the defendant

reasonably believed that such permission had been given, the State must

demonstrate beyond a reasonable doubt either that the defendant did not actually

believe that such permission had been freely given, or that such a belief was

unreasonable under all the circumstances."

      A fair reading of this instruction was that the State had the burden on every

element and did not require defendant to prove consent. This instruction did not


                                                                           A-0898-17T4
                                       15
rise to the level of plain error. It was entirely consistent with the Court's

guidance in State In the Interest of M.T.S., 129 N.J. 422, 449 (1992), that the

State bears the burden of proving beyond a reasonable doubt "that a reasonable

person would not have believed that there was affirmative and freely given

permission." The trial court's jury instruction quoted nearly verbatim from

M.T.S.

                                       C.

      Defendant argues the court's jury instruction on witness tampering

allowed for his conviction on this charge without jury unanimity. We review

this issue under a plain error standard because it was not raised at the trial. R.

2:10-2.

      The court instructed the jury on witness tampering. First, the State had to

prove that defendant believed an "official proceeding or investigation was

pending" or about to be instituted. Next, the State had to prove that defendant

"knowingly" engaged in conduct that a "reasonable person" would believe

would cause a witness to: testify falsely, withhold testimony or information, or

not testify or absent himself from the investigation, or "[o]therwise obstruct,

delay, prevent or impede an official proceeding or investigation." See N.J.S.A.

2C:28-5(a) (providing the elements of "tampering").


                                                                          A-0898-17T4
                                       16
      The State presented evidence that defendant knew there was an

investigation and then acted to try to influence Mary to withhold testimony or

obstruct the investigation. There was evidence that after Mary met with the

police, she received a phone call from defendant asking her to drop the charges

because defendant's brother had been arrested. Other messages from defendant

reproached Mary for giving the police evidence of defendant's text messages and

blamed her for his legal situation. These messages showed awareness of an

investigation and an attempt to influence Mary not to cooperate with the police.

      The court's instruction did not present different legal theories about

defendant's responsibility for witness tampering. Defendant's acts were not

"contradictory or only marginally related to each other." State v. Cagno, 211

N.J. 488, 517 (2012) (quoting State v. Parker, 124 N.J. 628, 639 (1991)). They

all arose from defendant's attempt to convince Mary not to cooperate with the

prosecution. Also, there was no "tangible indication of jury confusion." Ibid.

(quoting Parker, 211 N.J. at 639). Thus, there was no requirement in this case

for a specific unanimity charge on witness tampering.

                                    D.

      Defendant contends his sentence was excessive and requests a remand for

resentencing. He claims the trial court placed too much weight on defendant's


                                                                        A-0898-17T4
                                      17
criminal record because he had no convictions for indictable offenses. He

argues the trial court should have considered the hardship that incarceration

would have on his family and minor child, and taken into consideration

defendant's intellectual limitations. Defendant argues the court should have

considered the victim's wish to sentence him to a lower range.

       Our review of a sentencing determination is limited. See State v. Roth,

95 N.J. 334, 364-65 (1984). We review a judge's sentencing decision under an

abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must

determine whether the "aggravating and mitigating factors found by the

sentencing court were . . . based upon competent and credible evidence in the

record."   Ibid.   Also, we consider whether the "sentence [is so] clearly

unreasonable so as to shock the judicial conscience." Ibid. We discern no abuse

of discretion in this case.

      The court found aggravating factors three (the risk that defendant will

commit another offense), N.J.S.A. 2C:44-1(a)(3); six (defendant's prior criminal

record), N.J.S.A. 2C:44-1(a)(6); and nine (the need for deterrence), N.J.S.A.

2C:44-1(a)(9). Based on the presentence report, the trial court noted defendant

was a multi-state offender, who had "multiple juvenile adjudications." He had

a number of municipal court convictions.      His criminal record showed an


                                                                        A-0898-17T4
                                      18
escalation in criminal conduct. This record supported the finding that there was

a need for deterrence.

      Defendant argues the court erred by not finding application of mitigation

factor eleven (excessive hardship to himself or his dependents), N.J.S.A. 2C:

44-1(b)(11).   However, there was no evidence defendant was the primary

caretaker for his young son, or that his imprisonment would cause hardship

beyond that entailed by incarceration.

      Defendant argues the trial court should have considered as mitigating the

report from Avenel that assessed defendant's intellectual functioning as severely

deficient. However, there was no evidence that defendant could not understand

the charges against him, and the crime itself indicated a level of planning that

would negate or question the claimed deficiency.

      The court was not required to sentence defendant at the lower end of the

range, even if the victim requested this. The trial judge found based on Mary's

testimony that "harm was inflicted" on her as a result of defendant's actions.

The trial court did not abuse its discretion in sentencing defendant. It made

sufficient findings, there was ample evidence in the record to support them and

the sentence does not shock the judicial conscience.

      Affirmed.


                                                                         A-0898-17T4
                                         19
