                             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                        NOT FOR PUBLICATION WITHOUT THE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-0359-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

R.J.M.,

     Defendant-Appellant.
______________________________

              Argued June 5, 2018 - Decided July 31, 2018

              Before Judges Fisher, Sumners, and Natali.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Indictment
              No. 11-08-0763.

              Daniel S.      Rockoff, Assistant Deputy Public
              Defender,     argued the cause for appellant
              (Joseph E.    Krakora, Public Defender, attorney;
              Daniel S.      Rockoff, of counsel and on the
              briefs).

              Douglas B. Pagenkopf, Assistant Prosecutor,
              argued the cause for respondent (Charles A.
              Fiore,    Gloucester    County     Prosecutor,
              attorney; Douglas B. Pagenkopf, on the brief).

PER CURIAM
     An indictment charged defendant R.J.M. with three offenses:

(1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1)

(count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b)

(count two); and endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (count three).   A jury acquitted defendant on count two

but was unable to reach a verdict on counts one and three.       The

State retried defendant and a second jury convicted him on those

counts. The trial court sentenced defendant to a sixteen-year

prison term for count one, subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and a four-year concurrent prison term for

count three.   Defendant was also sentenced to five years mandatory

parole supervision and parole supervision for life.        Defendant

appeals his conviction, sentence, and various pre-trial and trial

rulings. He argues:


          POINT I

          BECAUSE   A   POLICE   INTERROGATOR   IGNORED
          [DEFENDANT]'S    UNAMBIGUOUS   REQUEST    FOR
          COUNSEL, THIS COURT MUST REVERSE THE DENIAL
          OF THE MOTION TO SUPPRESS [DEFENDANT]'S
          STATEMENT. U.S. Const., AMENDS. V, XIV.

          POINT II

          THIS COURT MUST ALSO REVERSE THE DENIAL OF
          THE MOTION TO SUPPRESS [DEFENDANT]'S STATEMENT
          FOR REASONS RELATED TO INTERROGATORS'
          CONFRONTATION OF [DEFENDANT] WITH A POLYGRAPH.
          U.S. Const., AMENDS. V, XIV.




                                 2                         A-0359-15T3
     A.      [Defendant]    did   not
     intelligently waive his right to
     silence    before   he  took the
     polygraph.

     B. Interrogators coerced unreliable
     responses from [Defendant] only by
     confronting him with a fabrication
     of scientifically-certain proof of
     guilt, whereupon [Defendant] tried
     to reconcile his own inconsistent
     memory with that pseudoscientific
     fabrication.

     C. The trial court's so-called
     "cure" - admitting [Defendant]'s
     statement while hiding from the jury
     how interrogators used a polygraph
     to elicit the statement - was
     totally inadequate, as it left
     [Defendant] with an unacceptably
     prejudicial dilemma.

POINT III

THE COURT ERRED BY DENYING [DEFENDANT]'S
REQUEST FOR A SECOND-DEGREE N.J.S.A. 2C:14-2B
CHARGE AS A LESSER ALTERNATIVE TO THE FIRST-
DEGREE N.J.S.A. 2C:14-2A(l) CHARGE.      U.S.
Const., AMENDS. V, XIV; N.J. Const., ART. I,
¶¶ 1, 9, 10.

POINT IV

THE CUMULATIVE PREJUDICE OF REPETITIOUS OUT-
OF-COURT HEARSAY ADMITTED PURSUANT TO
N.J.R.E. 803(C)(27) AND N.J.R.E. 803(C)(4)
OVER THE DEFENDANT'S OBJECTIONS DENIED
DEFENDANT A FAIR TRIAL. U.S. Const., AMENDS.
V, XIV; N.J. Const., ART. I, ¶¶ 1, 9, 10.

POINT V

AFTER THE FIRST JURY'S VERDICT, THE DOCTRINE
OF COLLATERAL ESTOPPEL, ALSO KNOWN AS ISSUE
PRECLUSION, BARRED THE STATE FROM RE-ARGUING

                      3                         A-0359-15T3
           AT THE SECOND TRIAL THAT [DEFENDANT] ACTED
           PURPOSELY. THE STATE'S UNFAIR REPETITION OF
           THIS CLAIM, WHICH THE STATE HAD ALREADY
           LITIGATED AND LOST AGAINST [DEFENDANT] AT THE
           FIRST TRIAL, UNFAIRLY DILUTED [DEFENDANT]'S
           DEFENSE THAT ANY IMPROPER CONTACT HAD BEEN AN
           ACCIDENT. U.S. CONST., AMENDS. V, XIV; N.J.
           Const., ART. I, ¶¶ 1, 9, 10.

           POINT VI

           THIS MATTER SHOULD BE REMANDED FOR
           RESENTENCING, BECAUSE THE COURT FOUND
           IMPROPER AGGRAVATING FACTORS, AND FAILED TO
           FIND RELEVANT MITIGATING FACTORS.

      After a thorough review of the record, we conclude that

defendant did not invoke his right to counsel and, thus, his

subsequent inculpatory statements were appropriately admitted by

the trial court.      We also disagree with defendant's claims that

he did not intelligently and voluntarily waive his Miranda1 rights

and we find no error in the trial court's redaction of the recorded

interrogation.     We conclude, however, that the trial court erred

in refusing to charge the jury on the lesser-included offense of

second-degree sexual assault.      We find no error with the trial

court's   evidentiary    rulings   with   certain   exceptions   to   be

addressed on remand, and no merit to the State's collateral

estoppel argument.      Accordingly, we affirm in part, reverse in

part and remand.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                   4                         A-0359-15T3
                                  I.

     Defendant's wife ran a daycare center out of her home that

J.C., the victim, began attending when he was a one-year-old child.

Approximately three years later, defendant took a disability leave

from his job and was at home more frequently during the day.

Defendant's wife claimed that despite his increased presence in

the home, defendant had no involvement with the daycare center's

business   but   acknowledged   that   he   interacted   with   J.C.

occasionally such as tickling him and blowing "raspberries" on his

stomach.

     When J.C. was four, he told his father that "[defendant] bit

my peepee and it hurt," a statement he repeated to his mother.

The next day, J.C.'s parents took him to the police station where

a detective conducted a recorded interview.   Although J.C. did not

repeat the allegations to the detective, when the detective left

the room J.C. repeated the statement to his mother while the camera

was still active.   J.C. also repeated the allegation to a child

abuse pediatrician who performed a physical examination.    At both

the first and second trials, J.C. testified that defendant touched

him with his hands, not his mouth.

     When defendant was questioned at the police station the next

day, he was read his Miranda rights and repeatedly proclaimed his

innocence during the five-hour interrogation.     During the first



                                 5                         A-0359-15T3
portion of his interrogation, the detectives asked defendant about

taking a polygraph exam and he indicated that although "nervous"

he "should do well" on it.    After agreeing to the polygraph exam,

defendant spoke to a different interrogator from the State Police

polygraph unit.   According to the trial court, after it reviewed

the videotaped interrogation, this discussion occurred as the

detective set up the polygraph equipment:

          Detective: Okay . . . I can't just hook you
          up and start asking you questions, I have to
          do an interview beforehand, I have to get
          basic information that you've probably already
          given to the detectives, and I apologize if
          it's redundant . . . [B]ut before we start
          doing that, I have to . . . read you your
          Miranda rights, I know they already [did] it
          to you?

          Defendant: Mmm-mmm.

          Detective: Okay, I have to do that again, just
          because my department requires it, and it's
          also a polygraph consent form. You know
          polygraph is voluntary?

          Defendant: Mmm-mmm.

          Detective: Okay, nobody can force you to take
          it.

          Defendant: Right.

          Detective: Okay, so I'm gonna read this to you
          and get this out of the way and then we'll go
          from there, because I have to ask you
          questions. . . .

          Defendant: My one, one of my main concerns,
          I, I'm wondering, I want to take [the



                                  6                        A-0359-15T3
            polygraph exam] because, I, I, know I didn't
            do anything. . . .

            Detective: Uh-huh.

            Defendant: But, I mean, I don't know if I have
            to have a lawyer?

            Detective: You wanna what?

            Defendant: A lawyer.

            Detective: That's up to you, I can't, I can't
            give you any kind of advice regarding that, I
            mean if you didn't do anything, if you did
            nothing wrong, um, you take the polygraph
            test, you clear your name from this case, and
            you move on.

            Defendant: Okay.

            Detective: If you think you need a lawyer, if
            you decide you want a lawyer, then. . . .

            Defendant: What is that, I don't think I need
            a lawyer . . . but . . . I mean. . . .

            Detective: If you think you need a lawyer . .
            . if you . . .

            Defendant: I feel, I, I don't want to okay to
            something that. . . .

            Detective: If you want a lawyer, then that's
            something that you'll have to tell me and then
            I'm not allowed to talk to you.

            Defendant: Well I'll take it, I, I have no
            reason to uh, I mean, I have nothing to uh,
            hide.

     Defendant was read his Miranda rights again and signed a

polygraph   consent   form.      After   the   exam   was   completed,   the

detective advised defendant that he failed the test.          Upon hearing

                                    7                             A-0359-15T3
the results, defendant made incriminating comments that his mouth

might   have     unintentionally   touched     J.C.'s      penis   when    he    was

tickling and wrestling and rolling around with him.                     Defendant

agreed to write an apology letter to J.C. and stated he was "very

sorry" and that he "never meant for that [oral contact] to happen."

After completing the letter, defendant was arrested.

     In    his    first   point,   defendant      argues    that   he     made    an

unequivocal request for counsel that the trial court erroneously

characterized as ambiguous.        We disagree and conclude that rather

than invoking counsel, defendant merely sought advice from the

detective.

     An accused must be advised of his right to remain silent and

to have a lawyer present, and if that right is asserted, it must

be "scrupulously honored."         Michigan v. Mosley, 423 U.S. 96, 104

(1975).    An accused that has expressed his desire to deal only

with police through counsel may not be further interrogated until

such counsel is present, "unless the accused himself initiates

further    communication,     exchanges,     or    conversations        with     the

police."   Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).                  In New

Jersey, "an equivocal request for an attorney is to be interpreted

in a light most favorable to the defendant."                State v. Chew, 150

N.J. 30, 63 (1997), overruled on other grounds, State v. Boretsky,

186 N.J. 271 (2006).



                                      8                                   A-0359-15T3
     When an accused makes an ambiguous statement that may be

construed as an assertion of his Miranda rights, the police are

permitted to ask follow up questions "designed to clarify the

meaning of those words."     State v. Alston, 204 N.J. 614, 623

(2011).   Put another way, if "'following an equivocal indication

of the desire to remain silent,' the police are reasonably unsure

whether the suspect was asserting that right, they 'may ask

questions designed to clarify whether the suspect intended to

invoke his right to remain silent.'"    State v. Johnson, 120 N.J.

263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836,

841-42 (11th Cir. 1987)).

     Under Miranda, such questioning aimed at clarification is

"not considered 'interrogation' . . . because it is not intended

to 'elicit an incriminating response from the suspect.'"   Johnson,

120 N.J. at 283 (quoting Christopher, 824 F.2d at 842 n.16).    "The

rule permits only clarification, not questions that 'operate to,

delay, confuse, or burden the suspect in his assertion of his

rights.   Because such questions serve to keep the suspect talking,

not to uphold his right to remain silent, they constitute unlawful

"interrogation," not permissible clarification.'"    Id. at 283-84

(quoting Christopher, 824 F.2d at 842).

     Defendant's claim that he unambiguously requested an attorney

is belied by a review of the relevant exchange in its entirety,



                                 9                         A-0359-15T3
as opposed to a truncated version in which words and phrases are

improperly parsed.   Only if we view the colloquy — "you wanna

what?",2 "a lawyer" — in complete isolation, and by consciously


2
   We reviewed the same unredacted videotape considered by the
trial court. After our review, we have concluded that the relevant
colloquy between defendant and the detective represented in the
transcript submitted by the parties on appeal is incorrect. The
accurate colloquy reads:

          Defendant: But, I mean, I don't know if I have
          to have a lawyer?

          Detective: You don't know what?

          Defendant: A lawyer.

     We acknowledge that the factual findings of a trial court in
support of the grant or denial of a motion to suppress "must be
upheld when 'those findings are supported by sufficient credible
evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017)
(quoting State v. Gamble, 218 N.J. 412, 424 (2014)). In S.S., the
Court "cautioned that a trial court's factual findings should not
be overturned merely because an appellate court disagrees with the
inferences drawn and the evidence accepted by the trial court or
because it would have reached a different conclusion."       Ibid.
Rather, absent findings that are "so clearly mistaken that the
interests of justice demand intervention and correction," we
should not disturb the factual findings of a trial court. Ibid.
(quoting Gamble, 218 N.J. at 425).
     Our independent review of the videotape does not alter our
determination that defendant's statement was not an invocation of
counsel, ambiguous or otherwise.     In other words, whether the
exchange included the phrase "you wanna what?" as reflected in the
transcript or "you don't know what," defendant was not invoking
his right to counsel but was clearly asking for advice. Thus, the
trial court's incorrect factual finding on this point was not "so
clearly mistaken that the interest of justice demand intervention
and correction," Ibid. (quoting Gamble, 218 N.J. at 425), because
it nevertheless correctly characterized defendant as asking the
interrogating officer for "advice on whether he needed an
attorney."


                                 10                        A-0359-15T3
ignoring the previous statement, could one conclude the request

for counsel was unambiguous.               His initial statement — "But, I

mean, I don't know if I have to have a lawyer?" — is presented as

a question and evidences an attempt to seek advice from the

detective on the necessity of counsel.                  The follow-up question and

answer was connected to defendant's request for legal advice.

      The       relevant    colloquy     is      similar       to    the   permissible

interrogation in Messino and Alston.                In Messino, 378 N.J. Super.

at 573, during a cigarette break, the defendant asked, "Do you

think I need a lawyer?"               The police officer advised defendant

"that it was his responsibility to tell defendant that he had a

right      to   have    a   lawyer,    but      'that    was    his    call.'"        Not

surprisingly,          we   found   that      defendant        "merely     asked"     the

interrogator if he needed a lawyer and that "[this] inquiry . . .

may   be    distinguished      from    other     statements         considered   to   be

requests for counsel."          Id. at 578.       We held the statement was not

a request for counsel, ambiguous or otherwise, but was a mere

request for advice.

      In Alston, 204 N.J. at 618, the Court concluded defendant's

statements, "Should I not have a lawyer in here with me?" and "No,

I am asking you guys, man. I don't - I'm just - I see you guys,

man," were not unambiguous requests for counsel.                      The Alston Court

also concluded that the officer's immediate response — "That's on



                                           11                                 A-0359-15T3
- that's on you.    If you want a lawyer, then we - stop and you

going to get your lawyer. . . .    If you want to stop at this time

then we stop at this time." — was both a "fair recitation" of

defendant's Miranda rights and "permissible clarification."     Id.

at 617-618, 628.

     Again, defendant's statement — "But, I mean, I don't know if

I have to have a lawyer?" — was posed as a mere question to the

detective in an attempt to seek advice.    While we recognize that

an ambiguous request for counsel is "to be interpreted in a light

most favorable to the defendant," Chew, 150 N.J. at 63, when we

read the colloquy as a whole we cannot escape the conclusion that

defendant's statement was not an invocation of counsel, ambiguous

or otherwise.      Further, the detective's immediate response —

"That's up to you, I can't, I can't give you any kind of advice

regarding that. . . ." — was an appropriate effort to explain to

defendant that the detective could not advise whether counsel was

necessary.

     To the extent that defendant's statements may be viewed as

an ambiguous invocation of his right to counsel, we agree with the

trial court that the detective appropriately clarified defendant's

request and did not impermissibly "delay, confuse, or burden" him.

Johnson, 120 N.J. at 283.   Without delay, the detective promptly

advised defendant that she could not give him advice and indicated



                                  12                      A-0359-15T3
that, if he was requesting a lawyer, he had to tell her.     Simply,

the lack of burden placed upon defendant is highlighted by the

detective's sharp response that he had to tell her if he wanted

to invoke his rights and obtain counsel.     Further, the entire

reason the detective was in the room with defendant was because

he had voluntarily agreed to take the polygraph exam.   Therefore,

we conclude that during the relevant colloquy the detective did

not implant or force the idea of the exam onto defendant.    Rather,

he had already expressed a willingness to take the exam and thus

under these circumstances the detective's comments did not try to

"delay, burden or confuse" his right to counsel.3

                                II.

     Defendant argues in Point II that (1) he did not voluntarily

waive his right to take the polygraph, (2) the detectives coerced

unreliable responses, and (3) the trial court's redaction of

references to the polygraph in the recorded interrogation shown

to the jury was in error.   We disagree.


3
   We also observe that the detective's statement, "If you want a
lawyer, then that's something that you'll have to tell me and then
I'm not allowed to talk to you" is not a precise characterization
of the Miranda warnings. But, in light of defendant having been
previously Mirandized and clearly understanding and waiving his
rights, we conclude this comment did not in any way confuse him.
In this regard, we are mindful that "interrogating officers, when
engaged in communications with suspects, most often use language
that is also more like that of the suspect than the precise and
pristine elocutions of the . . . Oxford don." Alston, 204 N.J.
at 627.

                                13                          A-0359-15T3
      A valid waiver requires the State to show beyond a reasonable

doubt that the accused's waiver was "voluntary, knowing, and

intelligent."        State v. Hubbard, 222 N.J. 249, 265-67 (2015)

(quoting State v. Hreha, 217 N.J. 368, 382 (2014)). An involuntary

confession may result from physical or psychological coercion;

however, "use of psychologically oriented interrogation techniques

is not inherently coercive."           State v. Cook, 179 N.J. 533, 562

(2004).     Whether the State has shown beyond a reasonable doubt

that a waiver was voluntary should be determined by assessing the

"totality    of    the     circumstances"   which      "includ[es]    both   the

characteristics       of    the    defendant     and   the   nature     of   the

interrogation."       State v. Galloway, 133 N.J. 631, 654 (1993).

Further, relevant factors in making this determination include

"the suspect's age, education and intelligence, advice concerning

constitutional       rights,      length    of    detention,       whether   the

questioning was repeated and prolonged in nature, and whether

physical punishment and mental exhaustion were involved." Ibid.

Courts should also consider "defendant's previous encounters with

law enforcement" and the period of time that has elapsed between

the   administration        of    Miranda   rights     and   the    defendant's

confession.       Hreha, 217 N.J. at 383.

      First, defendant argues that he did not intelligently waive

his right to silence prior to the polygraph exam.              His contention



                                       14                              A-0359-15T3
is based upon his conversation with the detective as she was

setting up the polygraph exam and after he waived his Miranda

rights where he asked, "If I don't take this test . . . what is

my next step, am I just automatically guilty?"           The interrogator

responded "I don't know," and offered to get the detective working

on the case to come talk to defendant.            Defendant declined but

continued asking what other options he had if he walked out of the

interrogation room, leading the interrogator to state that, if he

left the room, his name would not be cleared and that it would

make J.C.'s story "more believable."         Defendant then decided to

take the polygraph.

     Defendant relies on State v. Pillar, 359 N.J. Super. 249, 268

(App. Div. 2003), where we held that the defendant's Miranda waiver

was not valid because the officer's "acquiescence to hear an 'off-

the-record' statement" from the defendant, which the officer knows

cannot be "off-the-record," "totally undermines and eviscerates

the Miranda warnings."     But, here, the detective responded to

defendant's   inquiry   that   she    did   not   know   if   he   would   be

automatically guilty because she was not the detective working on

the case.     Thus, the detective did not make any affirmative

assertions that defendant would be guilty if he did not take the

polygraph exam and did not attempt to undermine defendant's Miranda




                                     15                            A-0359-15T3
warnings.     Also, defendant understood that he did not have to take

the test when he stated "I want to know what options I have if

. . . I was to just walk out of here."

       Second,    defendant    contends      that   the   detective      coerced

unreliable     responses    from   him      by   "confronting     him    with    a

fabrication[] [of] scientifically-certain proof of guilt."                      Our

Supreme Court has recognized the questionable reliability and

accuracy of polygraph tests.          See State v. A.O., 198 N.J. 69, 83-

84 (2009); see also State v. Domicz, 188 N.J. 285, 313 (2006)

(recognizing that "serious questions about the reliability of

polygraph evidence remain").       Here, defendant takes issue with the

detective's      statements    that      polygraphs    are    a    "scientific

instrument" that is "97% accurate" and that his nervousness would

not impact the test.

       We disagree with defendant's attempt to compare the present

matter to cases where the police fabricated tangible evidence to

elicit a confession.       See State v. Chirokovskcic, 373 N.J. Super.

125,   129,   133-34   (App.   Div.    2004)     (upholding   suppression       of

confession on the basis of coercion because the police fabricated

a laboratory report to fictitiously indicate the defendant's DNA

was found at the crime scene); State v. Patton, 362 N.J. Super.

16, 18, 49 (App. Div. 2003) (holding the defendant was coerced

when the police fabricated an audio tape depicting a fake eye-



                                       16                               A-0359-15T3
witness to the crime).    The detective here did not fabricate the

results of the polygraph test.    Defendant simply failed the test

and the results were used to show that he was not being truthful

in the interrogation.    See State v. R.T., 411 N.J. Super. 35, 45-

46 (App. Div. 2009) (finding that "the specific use of the voice

stress analyzer to point out to defendant that it appeared he was

not being entirely candid in his denial of the allegations, does

not rise to the level of trickery by resorting to fabricated

evidence of the type that we disapproved in [Patton, 362 N.J.

Super. at 31-49]").4




4
   A survey of the case law outside of New Jersey supports the
actions of the police here. See Mastin v. Senkowski, 297 F. Supp.
2d   558,    603-04   (W.D.N.Y.    2003)(finding    an    officer's
misrepresentation that the polygraph machine was "95 percent
accurate" did not make the defendant's confession involuntary
because the law allows police to make false statements, the
defendant failed to establish the officer lied about the polygraph
results); People v. Mays, 174 Cal. App. 4th 156, 166 (Cal. Ct.
App. 2009)(disregarding defendant's belief that "polygraphs are
100 percent accurate" because "the belief was not induced by the
police"); Contee v. United States, 667 A.2d 103, 104 (D.C.
1995)(stating that, when using tests such as polygraphs, the
police's failure to "explain[] that the test results are not
conclusive" does not mean the confession is involuntary unless the
defendant shows the deception was "unfair to the extent that his
due process was denied"); State v. Stone, 303 P.3d 636, 645 (Idaho
Ct. App. 2013)(determining the detective's statement, after
defendant took the exam, that "polygraph examinations were one-
hundred percent accurate" did not make the defendant's statements
involuntary   because   the   detective   did   not    make   legal
misrepresentations or threaten defendant with a greater crime for
lying to police); State v. Underhill, 346 P.3d 1214, 1217 (Or. Ct.
App. 2015)(finding the defendant's statements in the context of
the polygraph exam process were voluntary and not the product of

                                 17                       A-0359-15T3
     Also,       in     assessing      the        voluntariness   of    defendant's

statement,       the     trial     court     considered     the   nature    of   the

investigation: defendant was informed "nobody could force him to

take" the polygraph; the door in the interrogation room was

unlocked and defendant was free to leave at any time; he was told

he was not under arrest; defendant was given multiple breaks,

allowed trips to the bathroom, and water to drink.                      The balance

of these factors establish that defendant was not subjected to

substantial psychological pressure during interrogation. See Cook,

179 N.J. at 563.         Because defendant's free will was not overborne

based   on   a    totality        of   the    circumstances,      his   inculpatory

statements were correctly determined by the trial court to be

voluntary.

     Finally,          while     defendant        agrees   with   the   polygraph's

inadmissibility, he argues that it was prejudicial for the jury

to be instructed to assess the reliability of his inculpatory

statements without knowledge of the detective's use of the failed

polygraph.       However, because we find that defendant's statements

were voluntarily given, there was no coercive intervening event

that the jurors needed to be informed about and the trial court

did not err in excluding all references to the polygraph.




unlawful police conduct, despite the officer telling defendant the
polygraph was "97.3 percent accurate" prior to taking the test).

                                             18                            A-0359-15T3
                                      III.

      We agree, however, with defendant's contention in Point III

that the trial court should have charged the jury on the second-

degree sexual assault charge.         The trial court's refusal — because

it would be "a violation of double jeopardy" — was contrary to

State v. Villar, 150 N.J. 503, 518 (1997) and State v. Short, 131

N.J. 47, 62-63 (1993), and warrants reversal.

      "Appropriate and proper charges to a jury are essential for

a fair trial."       State v. Green, 86 N.J. 281, 287 (1981).           Pursuant

to N.J.S.A. 2C:1-8(e), the court "shall not charge the jury with

respect to an included offense unless there is a rational basis

for a verdict convicting the defendant of the included offense."

Accordingly, when a defendant's request to instruct the jury on a

lesser-included offense is denied, "an appellate court reviews the

denial of that request, determining whether 'the evidence presents

a rational basis on which the jury could [1] acquit the defendant

of   the   greater    charge   and   [2]    convict   the   defendant     of   the

lesser.'"     State v. Carrero, 229 N.J. 118, 128 (2017) (quoting

State v. Brent, 137 N.J. 107, 117 (1994)).              If a rational basis

exists, "a trial court's failure to give the requested instruction

is reversible error."       Ibid.

      In Short, 131 N.J. at 63, the Court upheld a defendant's

right for a jury to consider a lesser-included offense despite the



                                       19                               A-0359-15T3
fact that the offense was barred by the applicable statute of

limitations.     In that case, the trial court granted defendant's

request for a jury instruction on the lesser-included offense of

manslaughter but told the jury over defendant's objection that if

it found the defendant guilty of manslaughter, the defendant would

be acquitted as the statute of limitations had run on that offense.

Id. at 51.     Defendant appealed after he was convicted of murder,

arguing that the instructions on the lesser-included offenses

should not have been accompanied by warnings that he would be

acquitted.   Id. at 51.

     The Court reversed our affirmance of the conviction and held

that the defendant was entitled "to have the jury instructed on

all lesser[-]included offenses supported by the record," without

warnings about the sentencing outcome and further held that a

defendant had a right "not to be convicted of a crime whose statute

of limitations had passed" and these rights were not "conditioned

on the relinquishment of the other."    Id. at 52.

     In Villar, 150 N.J. at 508, a jury found a defendant guilty

of second-degree aggravated assault but acquitted the defendant

on third-degree aggravated assault.    We vacated the second-degree

aggravated assault conviction and held that there be no retrial

on the second-degree charge "because the jury acquitted defendant

on the third-degree charge . . . this lesser-included offense



                                 20                       A-0359-15T3
cannot be charged at retrial, thus hindering a fair retrial of the

greater offense."          Id. at 517.

       The Court reversed and ordered a retrial on the second-degree

charge.      Id. at 518-19.       Providing guidelines for the retrial, the

Court       acknowledged    the     double    jeopardy    implications       of   its

decision:

               We realize that, because of the constitutional
               prohibition    against      double    jeopardy,
               defendant   cannot    be   recharged  with   or
               convicted of the third-degree aggravated
               assault. However, at defendant's request, the
               jury could be charged with that offense as a
               lesser-included    offense    of  second-degree
               aggravated assault and should the jury return
               a verdict of guilt on that count, defendant
               would stand acquitted.

               [Id. at 518.]

       The State maintains that Villar is inapplicable because count

two    is    not   a   lesser-included       offense     to   count   one    as   the

culpability requirement for second-degree sexual assault charge

is higher than for first-degree aggravated sexual assault.                      It is

unnecessary to resolve this point because the State applies the

wrong legal standard.

       When a defendant requests a charge on a lesser-included

offense, the inquiry focuses on rationality: "whether the lesser

offense is strictly 'included' in the greater offense, as defined

by    N.J.S.A.     2C:1-8d,    is    less    important    to   a   trial     court's

determination to charge the offense than whether the evidence

                                         21                                 A-0359-15T3
presents a rational basis on which the jury could acquit the

defendant of the greater charge and convict the defendant of the

lesser."   Brent, 137 N.J. at 117.   A low threshold is set by the

rational-basis test. State v. Crisantos, 102 N.J. 265, 278 (1986).

"A defendant is entitled to a lesser-included offense instruction

rationally supported by the evidence, even if the instruction is

inconsistent with the defense theory."    Carrero, 229 N.J. at 128.

"[O]ur Court has determined that failure to instruct the jury at

the defendant's request on a lesser charge for which the evidence

provides a rational basis warrants reversal of the defendant's

conviction."   Brent, 137 N.J. at 118.5

     Here, there was evidence in the record that provided a

rational basis for including the lesser-included charge.    Indeed,

the police and J.C.'s parents testified that J.C. told them

defendant bit or put his penis in defendant's mouth.    However at

trial, J.C. testified that defendant touched his penis with his

hand, not his mouth.   This provided a rational basis for the jury

to have convicted defendant on the lesser sexual assault charge

if it did not believe defendant put J.C.'s penis in his mouth but

instead touched it with his hand.    Compare N.J.S.A. 2C:14-2(a)(1)


5
   Additionally, we note that we have previously characterized
second-degree sexual contact as a lesser offense than first-degree
aggravated sexual assault. See State v. Ramos, 226 N.J. Super.
339, 340 (App. Div. 1988); State v. J.S., 222 N.J. Super. 247, 250
(App. Div. 1988).

                                22                         A-0359-15T3
(a person is guilty of aggravated sexual assault "if he commits

an act of sexual penetration with another person . . . [under] 13

years old") with N.J.S.A. 2C:14-2(b) (a person is guilty of "sexual

assault if he commits an act of sexual contact with a victim who

is less than 13 years old and the actor is at least four years

older than the victim").         Accordingly, the trial court's refusal

to charge the jury consistent with Short and Villar was reversible

error.

                                      IV.

      Defendant next      argues in Point IV that the trial court

improperly admitted five out-of-court statements from the victim,

his   parents,     a   detective,   and    a   child     abuse   pediatrician.

Defendant    contends    the    statements     were    inadmissible   hearsay,

cumulative, and should have been excluded under N.J.R.E. 403.                 We

affirm the challenged evidentiary rulings with two exceptions

which we address for purposes of the remanded proceedings.

      A    trial   court's     evidentiary     rulings    are    "entitled    to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment."             State v. Brown, 170 N.J.

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)).     Unless the trial court "was so wide of the mark that a

manifest denial of justice resulted," we may not substitute our




                                      23                              A-0359-15T3
judgment for that of the trial court.           Marrero, 148 N.J. at 484

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

     The   trial   court   admitted    J.C.'s   recorded   statement,   his

statements to his parents, and to the detective pursuant to

N.J.R.E. 803(c)(27), which permits the admissibility of out-of-

court statements made by children relating to a sexual offense. 6

We conclude based on our review of the trial record that: (1)

J.C.'s father's testimony about what the victim told him – that

defendant bit his "peepee"; (2) the detective's testimony about

J.C.'s statements to his mother at the police station; (3) the

victim's own recorded statement given at the police station; and

(4) J.C.'s mother's testimony about his out-of-court statements

to her in their home were clearly admissible in accordance with

N.J.R.E. 803(c)(27) as all three prongs of the Rule were satisfied.

We find defendant's arguments challenging the admissibility of

this evidence to be without merit and not warranting extended

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




6
   Statements made out-of-court by a child under the age of 12
relating to sexual misconduct committed with or against the child
are admissible if (1) the opposing party is on notice; (2) the
court finds there is a probability that the statement is
trustworthy, and (3) the child testifies at the proceeding, or the
child is unavailable as a witness and there is corroborating
admissible evidence. N.J.R.E. 803(c)(27).


                                      24                         A-0359-15T3
     Defendant     also   argues    the    testimony   of   the     child   abuse

pediatrician, who was also qualified as an expert, was improperly

admitted   under    N.J.R.E.       803(c)(4),    which      deems    admissible

"[s]tatements made in good faith" for the "purposes of medical

diagnosis or treatment," because the statements made by the victim

to the pediatrician were not relevant to diagnosis or treatment.

Specifically, the pediatrician testified that J.C. stated during

her examination that "he bit here" and "pointed to his penis." We

find no abuse of discretion in the trial court's admission of this

testimony under N.J.R.E. 803(c)(4) because our review of the record

confirms that J.C.'s statements occurred when he was brought to

the pediatrician for the purpose of treatment as a result of the

alleged sexual assault and not evidence gathering. Cf. In the

Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985)

(doctor's testimony pertaining to a child's statements regarding

alleged abuse inadmissible because the doctor was consulted for

evidence gathering purposes).

     Finally, defendant's reliance upon State v. E.B., 348 N.J.

Super. 336 (App. Div. 2002) for the proposition that prejudicial

"extra weight" was afforded to J.C.'s allegations based on the

number of admitted out-of-court statements of abuse is misplaced.

     In E.B., 348 N.J. Super. at 338, 346, the trial court excluded

testimony of a vital defense witness allowing only the defendant



                                      25                               A-0359-15T3
to testify on his behalf but permitting the State to present five

witnesses who testified pursuant to N.J.R.E. 803(c)(27).              In that

case, although we cautioned about the "extra weight" that may be

given when multiple witnesses testify to abuse, our criticism was

not directed to the prosecution's use of multiple witnesses but

rather the trial court's failure to give a "modicum of compensatory

liberality to [the] defendant in the presentation of his proofs."

Id. at 346.     Here, the jury heard the child's version multiple

times but unlike in E.B., defendant was not denied testimony of a

vital witness to his case.       Under these circumstances we find no

reason to conclude that the trial court abused its discretion in

determining that the probative value of the multiple out-of-court

statements was not "substantially outweighed" by the risk of "undue

prejudice" or the "presentation of cumulative evidence." N.J.R.E.

403.

       However, the trial court permitted over defendant's objection

the testimony of the treating child abuse pediatrician that during

the history portion of J.C.'s examination his mother informed her

"there was oral genital contact."           The trial court admitted the

testimony pursuant to N.J.R.E. 803(c)(4) concluding the hearsay

was "reasonable."         While the child's statements were clearly

admissible, it was error to permit the treating pediatrician to

channel   the   child's    statement    through   the   cumulative    hearsay



                                       26                            A-0359-15T3
statement of his mother for the stated purpose of treatment or

diagnosis.

     Similarly,   although   the   trial    court   properly   sustained

defendant's   objection   and   precluded     the   pediatrician    from

testifying about where in the home the alleged abuse took place

as clearly unrelated to medical diagnosis or treatment, the witness

was nevertheless permitted to testify regarding the movie that

J.C. was watching during one of the encounters.        We conclude that

such a corroborative fact should not have been admitted through

the doctor as it was irrelevant to treatment or diagnosis and was

cumulative of other evidence.           Because we are reversing the

conviction on other grounds, we need not determine if the erroneous

introduction of this evidence resulted in a manifest denial of

justice. That error, however, should not be repeated in any future

proceedings in this case.

                                    V.

     Finally, we reject defendant's collateral estoppel argument

in Point V and find it to be without sufficient merit to warrant

extended discussion in a written opinion. R. 2:11-3(e)(2).             We

provide only these brief comments.7




7
   The collateral estoppel issue was not raised before the trial
court directly. Rather, it was framed by defendant as a double
jeopardy argument. Applying either the plain error or harmless
error standard, Rule 2:10-2, we conclude the trial court committed

                                   27                          A-0359-15T3
      Defendant maintains that because the first jury acquitted him

on count two, it definitively determined that he had not acted

"purposely" and thus the State was barred from litigating that

issue at the second trial.           Defendant's argument, however, rests

on an incorrect assumption regarding the first jury's verdict and

a mischaracterization of the subsequent trial proceedings.

        While it is true that the first jury acquitted defendant on

count   two,    which   has    a   "purposeful"     mens   rea   element,    the

definition of "sexual contact" under that count requires the

defendant to commit sexual contact for the specific purpose of

"degrading or humiliating the victim or sexually arousing or

sexually gratifying the actor."             N.J.S.A. 2C:14-1(d).      Thus, as

the State correctly observes, it is equally as possible that the

first jury acquitted defendant on count two because they did not

believe he acted with these motivations.              Nevertheless, even if

we were to assume that the jury found that defendant did not have

a "purposeful" mental state, we are satisfied after our review of

the   trial    record   that   the    prosecution    in    its   pursuit    of   a

conviction for counts one and three, did not attempt to argue that

defendant acted purposefully and thus the proscriptions against

re-litigating a previously decided issue addressed in Ashe v.



no error on this point, let alone any that produced an unjust
result.


                                       28                             A-0359-15T3
Swenson, 397 U.S. 436, 444 (1970) and State v. Cormier, 46 N.J.

494 (1966) are inapplicable here.

      Unlike in Ashe, a fair reading of the record in the second

trial fails to support defendant's assertion that the State was

re-litigating an issue addressed previously — the acquitted charge

of sexual contact.          The essence of defendant's allegations that

the State re-litigated the mental culpability issue stems from

statements made during the prosecutor's closing, which defendant

characterizes as arguments in favor of purposeful action.                   Yet,

defendant was not re-indicted on "purposeful" sexual contact nor

was   the    jury   given   instruction    that   the   State   had   to   prove

"purposeful" intent.        Further, to convict defendant for aggravated

sexual assault under N.J.S.A. 2C:14-2(a)(1), the State only needed

to prove that defendant acted "knowingly."              In this regard, the

prosecution repeatedly emphasized the word "knowledge" and that

defendant "knew what he was doing" during closing argument.

      Affirmed in part, reversed in part and remanded for a new

trial.      We do not retain jurisdiction.




                                      29                              A-0359-15T3
