                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1142-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

D.C-M.,1

     Defendant-Appellant.
__________________________

                    Argued December 9, 2019 – Decided January 30, 2020

                    Before Judges Geiger and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 16-02-0347.

                    Cody Tyler Mason, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Cody Tyler Mason, of
                    counsel and on the brief).

                    William Kyle Meighan, Senior Assistant Prosecutor,
                    argued the cause for respondent (Bradley D. Billhimer,
                    Ocean County Prosecutor, attorney; Samuel J.

1
  We use fictitious names for the defendant, the victim and certain witnesses to
protect the victim's privacy interests. N.J.S.A. 2A:82-46(a); R. 1:38-3(c)(9).
            Marzarella, Chief Appellate Attorney, of counsel;
            William Kyle Meighan, on the brief).

PER CURIAM

      Defendant was tried before a jury and found guilty of first-degree

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

N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a)(1).    He appeals from the judgment of conviction and

sentence, and raises the following issues:

            POINT I

            THE PROSECUTOR COMMITTED REVERSIBLE
            MISCONDUCT WHEN SHE APPEALED TO THE
            JURY'S   EMOTIONS IN   HER   OPENING
            STATEMENT, AND MADE INCULPATORY
            STATEMENTS UNSUPPORTED BY THE RECORD
            IN HER SUMMATION.

                  A.  THE   PROSECUTOR   COMMITTED
                  MISCONDUCT WHEN SHE ASKED THE
                  JURY TO VIEW THE CASE FROM THE
                  PERSPECTIVE OF A MOTHER WHOSE
                  CHILD WAS SEXUALLY ABUSED.

                  B.  THE   PROSECUTOR  COMMITTED
                  MISCONDUCT IN SUMMATION WHEN SHE
                  MADE UNSUPPORTED COMMENTS TO
                  INCULPATE DEFENDANT.


            POINT II


                                                                      A-1142-17T4
                                       2
            THE TRIAL COURT COMMITTED PLAIN ERROR
            WHEN IT FAILED TO INSTRUCT THE JURY ON
            HOW TO EVALUATE DEFENDANT'S ALLEGED
            INCULPATORY OUT-OF-COURT STATEMENT.

            POINT III

            THE CUMULATIVE EFFECT OF THE TRIAL
            ERRORS DEPRIVED DEFENDANT OF DUE
            PROCESS AND A FAIR TRIAL AND WARRANTS
            REVERSAL OF HIS CONVICTIONS.

            POINT IV

            A REMAND IS REQUIRED BECAUSE THE COURT
            IMPOSED $4000 IN [SEX CRIME VICTIM
            TREATMENT FUND (SCVTF)] PENALTIES
            WITHOUT EXPLANATION.

After considering these arguments against the record and applicable legal

principles, we affirm defendant's conviction but remand for the court to make

the necessary factual findings and, if necessary, conduct an ability to pay hearing

with respect to the assessed penalties.

                                      I.

      On June 19, 2015, at approximately 7:00 a.m., the Lakewood Police

Department received a 911 call regarding a sexual assault at a local residence.

Detective Melissa Matthews of the Ocean County Prosecutor's Office responded

to the home to investigate and learned that the victim was an eight-year-old girl,

Y.S.M. (Yvette). Matthews interviewed Yvette's mother, C.M.T. (Claudia) and

                                                                           A-1142-17T4
                                           3
Yvette's cousin, A.S.C. (Anne). Yvette and Claudia lived in a home with

Claudia's two sons, Yvette's brothers, and her boyfriend, defendant D.C-M.

(Donald). Donald is not the biological father of the children. Anne lived with

her child, husband, and mother-in-law in an adjoining apartment.

      Anne, who placed the 911 call, testified that she "heard some noise" that

morning in Claudia's home. Specifically, she recalled hearing Yvette saying

"no" three times.     Anne feared that Yvette was "going through something

horrible," had a "bad premonition," and was concerned someone was "forcing"

Yvette to do something against her will. Anne opened the door connecting the

residences and testified she witnessed Donald on a couch with a blue blanket on

his lap and Yvette down "on her knees" with her mouth "on his penis." Anne

further testified that Donald looked directly at her and then ran into the bathroom

with his erect penis exposed.

      Anne did not enter the home to remove Yvette. Instead, she testified that

she woke her husband and instructed him to call the police while she went to

alert her mother-in-law. Anne's husband then removed Yvette and brought her

to their apartment.

      Yvette "was shaking" and repeated that she "didn't do anything." Anne

testified she asked Yvette if this happened before and Yvette responded that it


                                                                           A-1142-17T4
                                        4
happened "many times" including in the home where Yvette and her family,

including defendant, lived approximately a year and a half earlier.            Anne

testified that Yvette specifically stated that in the past Donald forced her to touch

his penis, he touched her vagina, kissed her, and further assaulted her by

performing oral sex on her. Yvette also told Anne that Donald tried to vaginally

penetrate her.

      Claudia testified that Donald woke her on June 19, 2015 and stated Anne

"was crying and that she had taken Yvette to her room."               Claudia went

downstairs and observed that her two sons were still sleeping. Claudia heard

Anne crying and testified that she "could hardly speak." Anne eventually told

Claudia that she saw Yvette "doing oral sex" to Donald while on the couch.

Claudia testified that she was shocked and could not believe that Donald would

abuse Yvette. Claudia began to cry and asked Yvette if Donald had "put his

penis in her vagina." Yvette also told Claudia about Donald's sexual abuse and

assaults.

      Donna Velardi, a forensic nurse with the Ocean County Prosecutor's

Office, performed a sexual assault evaluation and testified that she did not see

any injuries on Yvette's body, but did detect unspecified cloth fibers on Yvette's

skin. She collected multiple swabs including in the area around Yvette's outer


                                                                             A-1142-17T4
                                         5
lips. Cortney MacDonald, a New Jersey State Police forensic scientist, analyzed

the evidence and testified that she did not detect sperm on the collected swabs.

      Matthews also interviewed Anne, Claudia, and one of Yvette's brothers.

The recorded interview with Yvette was played for the jury. 2 In her interview,

which was largely consistent with her trial testimony, Yvette stated Donald

abused her in multiple locations, including on his bedroom floor, and that the

abuse started in their prior residence. In one incident, Yvette told Matthews that

Donald placed his finger in her vagina. Yvette further testified at trial that, on

"more [than two] times," Donald's "mouth went into [her] private part," and that

he would "put his mouth on [her] chest . . . and [her] mouth."

      Yvette also told Matthews that in the morning of June 19, 2015, Donald

forced her to perform oral sex while she was getting ready for school. Yvette

stated during the interview and at trial that the incident occurred in a closet under

the stairs, not on the couch, and specifically denied being abused on the couch

that morning. Yvette also did not corroborate Anne's statement that Donald ran

into the bathroom with a blanket and stated she did not have a blue blanket



2
  In a January 20, 2017 pretrial decision issued after an evidentiary hearing, the
court determined that Yvette's statements to Matthews were admissible under
the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). Donald does
not challenge that ruling on appeal.
                                                                             A-1142-17T4
                                         6
concealing her head, again contrary to Anne's testimony. Yvette also testified

that Anne told her she witnessed Donald putting his penis in her mouth.

      After the interviews, Officer Donald Fazio and another officer returned to

Claudia's home to inspect the closet where Yvette stated the abuse took place

that morning. Fazio testified he photographed the closet area and collected

swabs, including of what he thought was "a liquid or a fluid" on a wall.

      Fazio stated that he collected the swabs taken by Velardi and a purple

tank-top belonging to Yvette that was found on the top of the arm of the couch

where Anne allegedly witnessed the assault. Although the swabs did not detect

sperm or saliva, MacDonald testified that Yvette's DNA was on the tank-top and

there was a "fairly high" chance that Donald's DNA was also on it.

      MacDonald explained that since she initially detected only Yvette's DNA

on the tank-top, she performed additional YSTR testing that "hones in on the Y

chromosome which only males have." She confirmed that a "mixed YSTR DNA

profile was obtained [from the tank-top]" that matched the YSTR DNA profile

from a specimen provided by defendant. MacDonald noted that the YSTR DNA

profile she obtained from the tank-top occurred no more frequently than one in

3180 African Americans, one in 3630 Caucasians, and one in 2120 of the

Hispanic population. She determined, however, that "all [Donald's] paternal


                                                                           A-1142-17T4
                                       7
male relatives cannot be excluded" due to the paternal inheritance characteristic

of the DNA test performed.      No other males related to Donald lived in the

residence.

      Donald also testified at trial. He specifically denied Yvette's and Anne's

allegations. He stated that both Yvette and one of her brothers was awake when

he was downstairs and that he was simply sitting on the couch when Anne

opened and closed the door and asked Yvette to come to her apartment. He

further testified that "[his] penis never went out of [his] pants." Moreover, he

stated that he went into the bathroom to brush his teeth and did not see Anne.

Donald acknowledged, however, that Anne, her husband, and her mother-in-law

were in his apartment when he left the bathroom, and Anne "was crying" and

holding Yvette "by her arm." Donald also testified that no one would tell him

what was happening, but that Yvette refused to leave with Anne until he

promised to get Claudia.

      Donald cooperated with the police and was interviewed on two separate

occasions during which he allegedly made inculpatory statements. The court

denied Donald's motion to suppress his statements after an evidentiary hearing

and concluded that "the requirements of the Fifth Amendment and the warnings




                                                                         A-1142-17T4
                                       8
identified as Miranda3 [r]ights were sufficiently met here." Donald does not

challenge that ruling on appeal.

       At trial, Donald denied the charges and stated he never touched Yvette

inappropriately. He also specifically denied, on cross-examination, that he told

the police in the aforementioned statement that Yvette may have accidentally

touched his penis on June 19, 2015.

       After initially indicating they were deadlocked, the jury convicted

defendant on the remaining charges in the indictment. 4 This appeal followed.

                                      II.

       In his first point, defendant maintains that the prosecutor went "beyond

the bounds of fair play," when she asked the jury during opening statements "to

view the case from the perspective of a parent whose child was abused," and

"made unsupported inculpatory statements in her summation." According to

defendant, these statements violated defendant's rights to a fair trial and due

process and warrant reversal of his convictions. We disagree.




3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
  Prior to the jury's verdict the State dismissed one of the two first-degree
aggravated sexual assault counts.
                                                                        A-1142-17T4
                                            9
      Specifically, defendant points to the following statements by the

prosecutor made during opening statements:

              What do you do if you find out that someone is touching
              your child? What do you do if you learn that someone
              is touching your daughter on her vagina, inside of her
              vagina? What do you do if you find out that a man is
              having your daughter touch his penis? What do you do
              if your daughter is eight years old, and it's this man who
              is doing it? What do you do if this is the man who is
              your live-in boyfriend who lives in the house with
              yourself and your three young children?

              These are the questions that [Claudia] had to ask herself
              of June 19th of 2015 when she learned for months
              [defendant] had been sexually assaulting her daughter.

      At no point during the opening statements did counsel object. Later that

day, during the redirect testimony of Anne, the court, sua sponte, advised the

prosecutor:

              I . . . want to caution the State, at no time going forward
              are you to suggest to the jury to put yourselves in the
              mother's position in judging the defendant's guilt . . . .
              I have considered giving a curative instruction [but]
              decided against it because [defense counsel] didn't
              object and because I don't want to draw more attention
              to it . . . . So I'm just advising you going forward and
              in terms of your summation not to do that.

Despite the court's comments, counsel for defendant neither requested a mistrial,

a curative instruction, nor objected to the court's ruling.



                                                                            A-1142-17T4
                                         10
      At the close of the State's case, however, defendant's counsel, relying on

State v. W.L., 292 N.J. Super. 100 (App. Div. 1996), objected to the prosecutor's

opening statement. The court replayed the relevant opening statement and

denied defense counsel's belated request, relying on State v. Gorthy, 226 N.J.

516 (2016). It concluded the prosecutor was not "actually diverting [the jury]

from considering the evidence, but really telling them that the evidence will

show all of this. And it's really up to them to decide whether or not that evidence

has been produced in this trial."

      The court also noted that while the prosecutor "should not have had the

jury more or less put themselves in the mother's position or to have sympathized

with the mother[,] . . . [s]he said this after the [c]ourt has told this jury twice

. . . that whatever the attorneys say is not evidence" and specifically referred to

"their openings and their summations." Finally, the court reasoned:

            I do not believe [the prosecutor's comments were] said
            purposely to inflame the jury to sympathize with the
            victim's family. I think it was more to set the stage, if
            you will. She was trying to be a bit dramatic perhaps
            to get their attention, but I don't think it was done
            intentionally to inflame the jury and I think that also
            came across.

      We initially note that as the trial court correctly advised the jury, opening

statements and summations of counsel are not evidence.                   State v.


                                                                           A-1142-17T4
                                       11
Timmendequas, 161 N.J. 515, 578 (1999). The purpose of opening statements

is to better prepare the jury to understand the evidence, and such statements are

limited to the facts that counsel intends to prove. State v. Wakefield, 190 N.J.

397, 442 (2007).

      Further, it is well-settled that prosecutors "are afforded considerable

leeway in making opening statements." State v. Williams, 113 N.J. 393, 447

(1988). The prosecutor is, however, "limited to commenting upon the evidence

and the reasonable inferences which may be drawn from that evidence." State

v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993). "A prosecutor's opening

statement 'should provide an outline or roadmap of the State's case' and 'should

be limited to a general recital of what the State expects, in good faith, to prove

by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div.

2014) (quoting State v. Walden, 370 N.J. Super. 549, 588 (App. Div. 2004)).

      "[T]o justify reversal, the [prosecutor's remark] must have been so

egregious that it deprived the defendant of a fair trial." Wakefield, 190 N.J. at

438 (2007) (citation omitted). The reviewing court should consider "whether

defense counsel made a timely and proper objection, whether the remark was

withdrawn promptly, and whether the court ordered the remarks stricken from

the record and instructed the jury to disregard them." Ibid. (citation omitted).


                                                                          A-1142-17T4
                                       12
When, a defendant fails to object to the prosecutor's comments, the allegedly

"improper remarks . . . will not be deemed prejudicial." Timmendequas, 161

N.J. at 576.

      We find W.L., relied upon by defendant in the trial court and before us,

distinguishable. In W.L., also a child sexual assault case, we reversed, in part

based on the prosecutor's "flagrant appeal for sympathy for the victim and an

equally flagrant attack on the defendant's character and credibility" in his

opening statement, and on his "continued . . . appeals for sympathy and hate"

during his summation. 292 N.J. Super. at 105-11. In that case, the prosecutor

commented on the innocence of all children generally, the effects of the crime

on the victim's family, and advised the jury that if it found the State has proven

its case it had a "strong duty to find him guilty." Id. at 105-09. The prosecutor

also stated without offering supporting evidence that the father urged the son to

pour roach spray down his mother's mouth when sleeping and to stab out the

eyes of his cousins when visiting. Id. at 107-08. The prosecutor's comments

here bear no similarity to the repeated and pervasive misconduct that occurred

in W.L.5


5
 In this regard, we note that defense counsel acknowledged when discussing
W.L. that in that case the "prosecutor's opening statement almost entirely was a


                                                                          A-1142-17T4
                                       13
      We conclude that when viewed in the context of the entire trial

proceedings which involved the testimony of nine witnesses, including the

defendant and the victim, the aforementioned remarks, while improper and

gratuitous, were not clearly capable of producing an unjust result or so egregious

that it deprived defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999).

In reaching this conclusion we considered that defense counsel failed to make a

timely objection and the prosecutor did not repeat the comments at any

subsequent point, including summations. Further, we note that the State did

introduce testimonial evidence that established Donald's abuse of Yvette, as

referenced in the opening statement.

      In addition, as noted, prior to opening statements and following closing

arguments, the court instructed the jury that counsel's statements were not

evidence. It explained that evidence came from witnesses and documents or

tangible items admitted into evidence at trial. Specifically, the judge stated:

            The first order of business will be the prosecutor's
            opening statement. In the opening statement, the
            prosecutor will present the State's contention and will
            outline what she expects to prove. Following that, the
            defense counsel will make her opening statement.
            What is said in an opening statement is not evidence.
            The evidence will come from the witnesses who will

flagrant appeal for sympathy," and that she was not "indicating that that's what
happened" during the prosecutor's opening statement here.
                                                                           A-1142-17T4
                                       14
            testify and from whatever documents or tangible items
            that are received into evidence.

      The judge repeated a similar instruction before the jury deliberated.

Additionally, the jury received detailed instructions regarding the elements of

the crimes charged, including the mens rea required to prove them.          It is

presumed the jurors followed these instructions. State v. Loftin, 146 N.J. 295,

390 (1996). Thus, the jury was clearly informed as to the distinction between

evidence and argument.       Finally, the State introduced considerable and

significant evidence supporting defendant's guilt that included not only the

videotaped and live testimony of Yvette, but testimony from Anne and Claudia.

In addition, the jury was presented with DNA evidence upon which it could

conclude both the victim's and defendant's saliva was found on the inside portion

of Yvette's clothing. Under the circumstances, we conclude the prosecutor's

remarks did not constitute reversible error.

      Defendant also contends the prosecutor made improper comments in his

summation. Specifically, he argues that the prosecutor committed misconduct

when she represented that Claudia testified that defendant "put towels on a

railing to conceal his abuse" and that Yvette testified that defendant "did not

abuse her on the couch only because [Anne] entered the apartment."



                                                                         A-1142-17T4
                                       15
      As to the claim that the prosecutor misrepresented Claudia's testimony,

the prosecutor stated:

            Now, we know that there's things on the railing here.
            [Claudia] testified that [the defendant] put some of
            these towels here blocking the view of the closet so
            nobody could see they were in here, behind there.
            Upstairs, [Claudia] sleeps here. She testified that
            [defendant] put these things on the railing, [defendant]
            put this blanket, and my recollection is she testified on
            the railing here, to block the view so that [Claudia] can't
            see . . . .

      Prosecutors are entitled to wide latitude in summations provided their

comments are based on the facts of the case or reasonably inferred from the

evidence. Wakefield, 190 N.J. at 457; Frost, 158 N.J. at 82. They may not make

"inflammatory and highly emotional" appeals that can divert a jury from a fair

consideration of the evidence. State v. Marshall, 123 N.J. 1, 161 (1991). They

also may not cast unjustified aspersions on a defendant or defense counsel,

demean the credibility of a defense witness, or make inaccurate factual or legal

assertions. State v. Smith, 167 N.J. 158, 177-78 (2001); Frost, 158 N.J. at 85-

86.

      An appellate court's task is "to consider the 'fair import' of the State's

summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting

Wakefield, 190 N.J. at 457). When reviewing a prosecutor's summation, we


                                                                          A-1142-17T4
                                       16
consider "the context in which the challenged portions were made, including

determining whether the remarks were a measured response to defendant's

summation made in an attempt to 'right the scale.'" State v. Murray, 338 N.J.

Super. 80, 88 (App. Div. 2001) (quoting State v. Engel, 249 N.J. Super. 336,

379 (App. Div. 1991)). As with challenges to a prosecutor's comments in

opening statements, to warrant reversal, the misconduct must be "so egregious

that it deprived the defendant of a fair trial." Jackson, 211 N.J. at 409 (quoting

Frost, 158 N.J. at 83).

      At trial, the State introduced into evidence a photograph showing clothing

and towels draped on the railing of the stairs in the apartment defendant shared

with Claudia, Yvette, and her brothers. Claudia testified that there was a hook

on the bathroom door to hang towels and she did not place any of the shirts or

towels on the railing, but that Donald "put everything there."

      Defense counsel objected to the prosecutor's closing remarks and stated

Claudia did not specifically ascribe a motive to Donald regarding the placement

of clothes on the railing. The court overruled counsel's objection and stated "it

[was] a fair inference" that Donald placed the clothing on the railing to block

Claudia's view.




                                                                          A-1142-17T4
                                       17
      We agree with the trial court that the prosecutor's comments were based

on the reasonable inferences drawn from the evidence at trial and, therefore,

were not grounds for reversal. See State v. Morton, 155 N.J. 383, 457-58 (1998).

And, while the prosecutor's comments could have been clearer, she did qualify

her comments by stating her comments were based on her "recollection."

Finally, as noted, the court's charge to the jury clearly stated that counsels'

arguments were not evidence and it was their recollection of the evidence that

controlled.

      Defendant next argues that the prosecutor improperly argued that the

reason Yvette stated she was not abused on the couch was due to Anne abruptly

interrupting Donald when she opened the door. On this issue, the prosecutor

argued:

              We know that on June 19th of 2015, [Yvette] got up and
              by her testimony and her statement that you saw, the
              defendant woke her up and put her in the closet area.
              And at that point he took out his penis and he put it in
              her mouth. She told you that when she testified and she
              told you that in her forensic statement. And she
              described it for you, but she also said something
              interesting in the fact that she said nothing came out of
              his penis. And when the officers tested the wall and
              found nothing it's because he didn't ejaculate in that
              closet that morning and [Yvette] told you that.

              And I submit to you that after that happened, because
              he didn't ejaculate, he wasn't finished. That's why he

                                                                          A-1142-17T4
                                        18
            had her on that floor, that's why he was sitting on this
            couch with this blue blanket over his lap and his penis
            still out of his pants, because the act was still
            continuing. And I submit to you that this blanket is here
            and you heard the testimony from the forensic . . . nurse
            that she noticed fibers, she saw it in the pictures, and
            you'll have the pictures in evidence, and she noted
            fibers. She couldn't tell whether it was clothing or a
            blanket, and I submit to you that the fair inference from
            this evidence is that [Yvette] was under this blanket,
            under this fuzzy blue blanket.

            And [Yvette] was very clear to say in her forensic
            interview that it didn't happen while he was on the
            couch because he hadn't had a chance to again put his
            penis in her mouth because [Anne] opened the door.
            And when he saw her, he was looking up because we
            know [Claudia's] room is up top, and she startled him,
            he got up and he ran to the bathroom. And that's when
            [Anne] saw his erect penis out of his pants. This is
            corroborated by the fact that here is the couch, here is
            this blue blanket, [Anne] testifies that when she opens
            the door and sees him, he's looking up.

      As the prosecutor correctly noted, during Yvette's forensic interview,

Yvette testified that Donald sexually assaulted her on June 19 by forcing her to

engage in oral sex with him in the closet. She also stated that she was not

assaulted on the couch that morning but that it occurred "[o]nly in the closet"

and that "white stuff" did not come out of Donald's penis. The prosecutor's

recitation of this evidence, repeatedly embedded with the phrase "I submit to

you," suggesting the abuse was a continuing act was fair argument to explain


                                                                        A-1142-17T4
                                      19
Yvette's testimony regarding the purported lack of abuse on the couch

considering Anne's specific testimony and Donald's denials. In this context, and

noting counsel's failure to object to the summation on this point, we conclude

the prosecutor's summation does not warrant reversal of defendant's convictions.

      In sum, our review of the prosecutor's summation here establishes that the

vast majority of counsel's argument properly dealt with examining and

discussing the evidence presented at trial and drawing inferences and

conclusions from that evidence. Defendant challenges only a small portion of

the State's lengthy summation. Under these circumstances, the comments were

not so egregious as to deprive defendant of a fair trial.     The prosecutor's

statements were a small part of a detailed summation that was substantially

focused on a fair review of the evidence.

                                    III.

      Defendant next argues that the court committed plain error when it failed

to provide a charge or "guiding instructions" to the jury to assist them in

evaluating a prior statement defendant allegedly made that "his exposed penis

may have touched [Yvette] on the morning of June 19." Defendant maintains

that the trial court should have sua sponte provided the jury with limiting

instructions consistent with State v. Hampton, 61 N.J. 250, 271-72 (1972), and


                                                                        A-1142-17T4
                                      20
State v. Kociolek, 23 N.J. 400, 421 (1957). Because defendant did not request

such instructions or otherwise object to the jury charge pursuant to Rule 1:7-2,

we consider this argument under the plain error standard and disregard any error

or omission by the trial court "unless it is of such a nature as to have been clearly

capable of producing an unjust result." R. 2:10-2; see also State v. Hock, 54

N.J. 526, 538 (1969) (noting the "legal impropriety in the charge" must be

"sufficiently grievous . . . to convince the court that of itself the error possessed

a clear capacity to bring about an unjust result").

      On direct examination, Donald testified that he "never touched [Yvette]

at any time."    During cross-examination, however, the State asked Donald

whether he previously told investigators one of his body parts "brushed up past

[Yvette]."   Donald responded that he was "talking about [his] arm" and

emphasized that he "never mentioned that [his] penis was out or that [he] had

touched [Yvette] sexually." 6     After the State reminded defendant he told

investigators, in reference to his penis, that "when she jumped . . . that's when

she grabbed it" and that "it just got out of there and she grabbed it," defendant



6
  The parties have not included a copy of the transcript of Donald's statements
to the investigators and which were subject of his motion to suppress. We
reference the portion of the statement at issue as characterized during the course
of Donald's trial testimony.
                                                                             A-1142-17T4
                                        21
repeated that he never said his penis touched Yvette and explained that he was

"showing [his] arm and explaining to [investigators] about [his] arm."

      On redirect, defense counsel asked defendant whether the prior statement

referenced by the State was "an incorrect translation" of what he told

investigators. Defendant replied that it was "the detective that was mentioning

[his] penis out of [his] pants" and reiterated that "[n]ever did [he] say that [his]

penis was outside [of his pants]." 7

      A trial court should provide a Kociolek charge whenever a witness at trial

testifies regarding oral statements made by a defendant. Kociolek, 23 N.J. at

421. In such cases, the trial judge should provide the jury with an instruction

that it "'should receive, weigh and consider such evidence with caution,' in view

of the generally recognized risk of inaccuracy and error in communication and

recollection of verbal utterances and misconstruction by the hearer." Ibid.

"[T]he Kociolek charge should be given whether requested or not." State v.

Jordan, 147 N.J. 409, 428 (1997).


7
  After Donald was questioned on redirect, the court denied the State's request
at sidebar to present evidence that the transcript of Donald's statements to
investigators was a certified translation. Defense counsel, nevertheless, argued
in summation that there was "no testimony that he agreed what was translated
was true." Defendant did not move to suppress his statement with the trial court
on the basis it was improperly translated, nor does he support such a claim on
appeal.
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      In addition, a trial court should provide a Hampton charge "whenever a

defendant's oral or written statements, admissions, or confessions are introduced

in evidence" regardless of whether the charge is requested. Jordan, 147 N.J. at

425. A jury "shall be instructed that they should decide whether . . . the

defendant's [statement] is true[,]" and if they conclude that it is "not true, then

they must . . . disregard it for purposes of discharging their function as fact

finders on the ultimate issue of guilt or innocence." Hampton, 61 N.J. at 272.

      The failure to give the charges, however, is not always reversible error .

Jordan, 147 N.J. at 425, 428. We will only reverse when omission of the charges

was clearly capable of producing an unjust result in the context of the entire

case. Id. at 425, 429. If the statements were "unnecessary to prove [the]

defendant's guilt because there is other evidence that clearly establishes guilt, or

if the defendant has acknowledged the truth of his statement, the failure to give

a Hampton charge" will not require reversal. Id. at 425-26. Likewise, whether

the failure to give the Kociolek charge constitutes plain error "will depend on

the facts of each case." Id. at 428.

      In State v. Harris, 156 N.J. 122, 183 (1998), the Supreme Court found that

a failure to give a Hampton and Kociolek instruction was not plain error because

the cross-examination of the testifying witness was sufficient to test his


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                                        23
credibility before the jury. The Court explained that "[t]he principal value of

the Kociolek charge is to cast a skeptical eye on the sources of inculpatory

statements attributed to a defendant[,]" and opposing counsel's "devastating

cross-examination . . . accomplished that end." Ibid.

      The Court reached a similar conclusion in State v. Feaster, 156 N.J. 1, 72

(1998), finding that "[t]he very purpose of a Hampton charge is to call the jury's

attention to the possible unreliability of the alleged statements made by a

criminal defendant." Because the witness was "under a sustained attack during

which his credibility was thoroughly challenged" on cross examination, the

failure to give a Hampton instruction was not plain error. Ibid.

      Initially we note that unlike in Hampton, the State did not move Donald's

statement into evidence. Even were we to assume that a Hampton charge was

nevertheless required under the circumstances here where the State effectively

introduced the substance of the inculpatory statement during cross-examination,

we conclude the court did not commit plain error in failing to provide either a

Hampton or Kociolek instruction for at least three reasons.

      First, the court gave detailed instructions on assessing the general

credibility of witnesses. See Model Jury Charges (Criminal), "Criminal Final

Charge" (May 12, 2018). Second, Donald testified and was directly and cross-


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                                       24
examined regarding his statement, permitting the jury to assess his credibility

regarding the statement. Third, there was significant other evidence that clearly

established defendant's guilt.     That testimony included Yvette's forensic

interview, her trial testimony recounting in detail the extensive and repeated acts

of sexual abuse by Donald at multiple locations, the DNA evidence and related

testimony, and the testimonies of Claudia and Anne, which the jury was free to

accept or reject in whole or in part. Accordingly, we conclude the court's failure

to provide a Hampton/Kociolek charge, under the particular and unique facts of

this case and given the lack of any request, does not require reversal .

                                      IV.

      Defendant argues in his third point that if we determine each alleged error

is insufficient to warrant reversal, the cumulative effect of each error

nevertheless denied defendant a fair trial. "[E]ven when an individual error or

series of errors does not rise to reversible error, when considered in combination,

their cumulative effect can cast sufficient doubt on a verdict to require reversal."

State v. Jenewicz, 193 N.J. 440, 473 (2008). As we have discussed, defendant

has not demonstrated any prejudicial error occurred at trial and the principle of

cumulative error, therefore, has no application here. See State v. Weaver, 219

N.J. 131, 155 (2014) ("If a defendant alleges multiple trial errors, the theory of


                                                                            A-1142-17T4
                                        25
cumulative error will still not apply where no error was prejudicial and the trial

was fair.").

                                     V.

      Finally, defendant maintains in his fourth point that the court erred in

imposing a $4000 SCVTF penalty in accordance with N.J.S.A. 2C:14-10 and a

remand is necessary because the court failed to "hold a hearing or make any

findings about those penalties or [defendant's] ability to pay them" as required

by State v. Bolvito, 217 N.J. 221 (2014). Defendant does not challenge any

other provision of his sentence. The State opposes a remand but alternatively

submits that any remand be limited to the court "provid[ing] its reasons for the

$4,000 SCVTF 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, 217 N.J.

at 233. In making that determination, a sentencing court "should begin by

considering the nature of the offense." Ibid. Moreover, 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 . . . ."


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                                       26
Ibid. In determining "a defendant's ability to pay, the sentencing court should

look 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 vacate

only that portion of defendant's judgment of conviction that imposed a $4000

SCVTF penalty and remand for the sentencing court to state the reasons for the

imposition of any SCVTF penalty imposed, including within those reasons an

assessment of defendant's ability to pay.

      Affirmed in part and vacated and remanded in part. We do not retain

jurisdiction.




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