                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                            State v. R.Y. (A-60-18) (081706)

Argued January 21, 2020 -- Decided May 6, 2020

FERNANDEZ-VINA, J., writing for the Court.

        This appeal centers on issues that arose during the trial and sentencing of
defendant R.Y. for sexual offenses against two young girls, “Brianna” and “Sharie.”
Defendant contends that the trial court impermissibly excluded Sharie’s statement to a
caseworker that it was defendant’s step-son who touched her. He also asserts that the
State asked exceptionally leading questions of both girls during their trial testimony and
that his sentence was manifestly excessive. The Court considers those arguments.

        In August 2012, Brianna told her mother that defendant -- a family friend who,
with his wife, sometimes babysat Brianna and Sharie -- had touched her “down there,”
pointing to her vagina. Sharie told her mother that he did the same to her. The next day,
caseworker Thomas DeAngelis came to the house and interviewed both girls separately.
DeAngelis’ notes from his interview with Sharie state the following: “[W]orker asked if
anyone has ever touched her in the bad part, and she said yes it was [Darren]. Worker
asked what [Sharie] did and she said that she told him to stop and he did. Worker asked
how many times he did [that] and she said just once. Worker asked if anyone else has
touched her there and she denied.” DeAngelis’ notes from his interview with Brianna
state that Brianna told him a “bad touch” was between her legs and that defendant had
touched her there. The girls were then interviewed by Detective Lindsay Woodfield.
The interviews were recorded and played at trial. Brianna stated in her interview that
defendant placed his fingers in her private area. Sharie also stated that defendant had
touched her with his fingers “many times.” Defendant was indicted for aggravated sexual
assault against both girls and endangering the welfare of both girls.

        The girls both testified at trial. Sharie was asked who had touched her and she
said, “I don’t remember.” The prosecutor then asked her if a girl or boy had touched her
and, when she said, “A boy,” whether it was “a small boy or a big boy.” Sharie said, “A
big.” The prosecutor asked, “the man who lived in that house, was he the one that
touched you?” to which Sharie replied, “Yes.” On redirect, the prosecutor asked Sharie,
“Do you like to talk about what [defendant] did to you?” She stated, “No.”




                                             1
       The State moved to preclude DeAngelis from testifying that Sharie told him only
Darren had touched her inappropriately. The trial court granted the State’s motion,
finding that defendant did not present sufficient evidence of third-party guilt. The trial
court also held that the Rape Shield Law barred DeAngelis’ testimony.

        Defendant was convicted and sentenced to two concurrent twenty-year terms of
incarceration on the aggravated sexual assault convictions, and two concurrent seven-
year terms of incarceration on the endangering convictions, with an eighty-five percent
period of parole ineligibility. The Appellate Division affirmed defendant’s convictions
and sentence, but it found that the Rape Shield Law “does not apply to the present
situation.” The Court granted certification. 236 N.J. 619 (2019).

HELD: The caseworker’s testimony regarding Sharie’s statement is clear evidence of
third-party guilt and was therefore impermissibly excluded at trial. As such, the Court
reverses the judgment of the Appellate Division and vacates defendant’s convictions for
crimes against Sharie. However, the State’s leading questions were appropriate for the
child victim witnesses, and defendant’s sentence was not manifestly excessive with
respect to the convictions for crimes against Brianna. The Court finds no reason to
disturb defendant’s convictions or sentence as to his offenses against Brianna.

1. The Court agrees with the Appellate Division that the Rape Shield Law does not apply
in this case. New Jersey’s Rape Shield Law restricts a defendant’s ability to introduce
“[e]vidence of previous sexual conduct with persons other than the defendant.” N.J.S.A.
2C:14- 7(c). The law is intended to deter the unwarranted and unscrupulous foraging for
character-assassination information about the victim. Here, the testimony at issue does
not seek to cast the victim as promiscuous or of low moral character, but rather to
demonstrate who committed the acts at issue. The Rape Shield Law does not apply to
exclude DeAngelis’ testimony in this case. (pp. 19-20)

2. In order to introduce evidence of third-party guilt, the proof offered must have a
rational tendency to engender a reasonable doubt with respect to an essential feature of
the State’s case. That standard does not require a defendant to provide evidence that
substantially proves the guilt of another, but to provide evidence that creates the
possibility of reasonable doubt. Here, Sharie’s statement to DeAngelis could engender a
reasonable doubt with respect to an essential feature of the State’s case. A jury could
find a reasonable doubt that defendant was the person who assaulted Sharie given her
statement to DeAngelis that she knew what a “bad touch” was and that Darren was the
only person who had touched her in a “bad touch” part. In sum, Sharie’s statement to
DeAngelis represents sufficient evidence that another person may have committed the
crime for which defendant was on trial. (pp. 20-24)

3. The Court next considers whether Sharie’s statement to DeAngelis would be
admissible as a prior inconsistent statement. N.J.R.E. 803(a)(1) is an exception to the


                                             2
hearsay rule. It provides that “[a] statement previously made by a person who is a
witness at a trial or hearing” that “would have been admissible if made by the declarant
while testifying” is admissible if it “is inconsistent with the witness’ testimony at the trial
or hearing and is offered in compliance with Rule 613.” A judge may conclude that a
claimed lack of memory is an implied denial of a prior statement, thus qualifying the
prior statement as inconsistent and nonhearsay. Further, the prosecutor here sought to
create an inference that defendant was the abuser. Following Sharie’s initial testimony
that she did not remember who touched her, the prosecutor eventually supplied the
identity of the abuser on redirect by asking, “Do you like talking about what [defendant]
did to you?” Based on the uncertainty of the identity of the abuser and the tenor of the
prosecutor’s examination, DeAngelis’ testimony was both relevant and necessary. And
the statement satisfies N.J.R.E. 613(b) because Sharie was available as a witness and
could have been questioned by the State if it chose to do so. (pp. 24-27)

4. The exclusion of Sharie’s statement to DeAngelis is not harmless error. That
statement contradicted her later statements and calls into question the State’s evidence
against defendant in Sharie’s case. (pp. 27-28)

5. Leading questions are frequently permitted in the examination of child witnesses.
Noting that this case represents a typical example of when leading questions are
appropriate, the Court finds that the trial court did not abuse its discretion in allowing the
questions. Upon review of the record, the only questions the Court found problematic in
the context of this trial were those through which the prosecutor moved from asking the
identity of the abuser to supplying that identity, as noted above. (pp. 28-30)

6. The Court does not comment on defendant’s sentences for crimes against Sharie and
finds no reason to overturn the trial court’s findings with respect to the aggravating and
mitigating factors leading to the sentence for crimes against Brianna. The factors found
were all supported by competent credible evidence. (pp. 30-31)

7. The Court vacates defendant’s convictions for crimes against Sharie and remands for
further proceedings consistent with this opinion. But the Court finds no reason to disturb
defendant’s convictions or sentence as to his offenses against Brianna. The Court
disagrees with defendant’s contention that the “allegations of both girls were inextricably
linked” and that any error with respect to the case for crimes against Sharie should lead to
the reversal of the convictions for the crimes committed against Brianna. (p. 31)

    AFFIRMED IN PART and REVERSED IN PART. The matter is
REMANDED to the trial court for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.



                                               3
       SUPREME COURT OF NEW JERSEY
             A-60 September Term 2018
                       081706


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

                        R.Y.,

                Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division.

       Argued                      Decided
   January 21, 2020               May 6, 2020


Susan L. Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Susan L. Romeo, of counsel and on
the briefs).

Sarah D. Brigham, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sarah D. Brigham, of counsel and on
the briefs).

Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Alexander Shalom and Jeanne LoCicero, on
the brief).



                          1
      JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.


      This case calls on the Court to consider issues that arose during the trial

and sentencing of defendant R.Y. for sexual offenses against two young girls.

Defendant stood accused of sexually assaulting B.H. (Brianna) and S.H.

(Sharie),1 two sisters he and his wife were paid to babysit. During an initial

interview with a Division of Child Protection and Permanency (DCPP)

caseworker, Sharie stated that defendant’s step-son had touched her “in the bad

touch part.” However, in a later statement to the police, she stated that

defendant was the one who sexually assaulted her.

      At defendant’s trial, Sharie initially testified that she could not

remember who had assaulted her. The State moved to preclude the DCPP

caseworker’s testimony regarding Sharie’s statements against defendant’s step-

son on the basis that those statements were vague and not inconsistent with

Sharie’s trial testimony. The trial court agreed, and the defense was precluded

from questioning the caseworker about Sharie’s statements to him. Following

a jury trial, defendant was convicted and sentenced to a twenty-year aggregate

prison term.



1
  All names used in this opinion are fictitious to protect the identities of those
involved.
                                        2
      Defendant appealed, arguing that the trial court impermissibly excluded

Sharie’s statement to the caseworker, that the State asked exceptionally

leading questions of Sharie and Brianna during their trial testimony, and that

the imposed sentence was manifestly excessive. The Appellate Division

rejected defendant’s arguments and affirmed his convictions and sentence.

      We conclude that the caseworker’s testimony regarding Sharie’s

statement is clear evidence of third-party guilt and was therefore

impermissibly excluded at trial. As such, we reverse the judgment of the

Appellate Division with respect to defendant’s convictions for crimes against

Sharie. We find, however, that the State’s leading questions were appropriate

for the child victim witnesses, and that defendant’s sentence was not

manifestly excessive with respect to the convictions for crimes against

Brianna. Thus, we uphold the convictions and sentence for crimes against

Brianna.

                                       I.

                                       A.

      In August 2012, Brianna was five years old and her sister, Sharie, was

seven years old. They lived with their mother, Margaret, their father, and their

half-sister. Defendant R.Y.’s family was close friends with Brianna and

Sharie’s family. Brianna and Sharie referred to R.Y. as “Uncle R.”

                                       3
Defendant’s family consisted of his wife Claire, his step-son Darren, and his

step-daughter.

      Margaret paid defendant and his wife to babysit Brianna and Sharie

when other members of their family were unavailable. On the afternoon of

August 30, 2012, Brianna told her mother that defendant touched her “down

there,” pointing to her vagina. Sharie told her mother that he did the same to

her. Margaret then informed Claire that she would not be allowed to watch her

children anymore. Margaret did not contact law enforcement about the

incidents. However, the next day, DCPP caseworker Thomas DeAngelis came

to the house and interviewed both girls separately. 2

      DeAngelis’ notes from his interview with Sharie state the following:

            Worker asked if [Sharie] knows the difference between
            [a] good touch and [a] bad touch[,] and she said yes.
            Worker asked if [Sharie] could please show worker
            where is [a] good touch and she pointed to her arm.
            Worker shook her hand and asked if this was [a] good
            touch or [a] bad touch[,] and she said it was good.
            Worker asked [Sharie] if she knew where [a] bad touch
            was[,] and she became silent and would not answer.
            Worker asked again and she just shook her head yes.
            Worker asked [Sharie] if she would point and she did
            not want to. Worker said that he understands, worker
            asked if anyone has ever touched her in the bad part,
            and she said yes it was her cousin [Darren]. Worker
            asked what [Sharie] did and she said that she told him
            to stop and he did. Worker asked how many times he

2
   The record is unclear as to how the Division became aware of the
allegations involved in the present matter.
                                        4
              did [that] and she said just once. Worker asked if
              anyone else has touched her there and she denied.

              [(emphases added).]

DeAngelis’ notes from his interview with Brianna state that Brianna tol d him a

“bad touch” was between her legs and that defendant had touched her there.

She further told DeAngelis that defendant touched her under her underpants

and that “he goes up into it” with his finger. Brianna stated that Sharie had

tried to tell defendant’s wife Claire, but defendant “held her mouth.” Brianna

stated the same thing happened to Sharie but she had not witnessed it and

Sharie was sometimes present when the abuse happened to Brianna.

      DeAngelis instructed Margaret to bring the girls to the Ocean County

Prosecutor’s Office Special Victims Unit. The girls were then interviewed by

Detective Lindsay Woodfield. These interviews were recorded and played at

trial. The relevant portion of Detective Woodfield’s interview with Brianna is

as follows:

              Detective Woodfield: Are there any touches you don’t
              like?

              Brianna: Yeah, by my Aunt [Claire] and Uncle [R.]

              Detective Woodfield: And what’s that? What touch is
              that?

              Brianna: Um . . . when Uncle [R] sticks far and uh . . . .
              ....

                                          5
              Detective Woodfield: What does that mean?

              Brianna: In my private area.

              Detective Woodfield: What does he stick in your
              private area?

              Brianna: His fingers.

              Detective Woodfield: His fingers? Anything else?

              Brianna: (Shakes head no)
              ....

              Detective Woodfield: Ok and when he sticks his finger
              up your private area, is it on the inside . . . of your
              private area?

              Brianna: (Nods head yes)

              Detective Woodfield: And where is your underwear
              though?

              Brianna: They’re on[.]

      The relevant portion of Detective Woodfield’s interview with Sharie is

as follows:

              Detective Woodfield: So what did you tell mommy
              yesterday? . . . Did you tell her someone touched your
              special spot?

              Sharie: (Nods head yes)

              Detective Woodfield: And who did you say did that? .
              . . What person did that?

              Sharie: My uncle.

                                         6
Detective Woodfield: Your uncle?

Sharie: (Nods head yes)

Detective Woodfield: The one that we were talking
about before? . . . . Uncle [R]?

Sharie: (Nods head yes)

Detective Woodfield: Okay and when he did that did
he do it over your clothing or under your clothing?

Sharie: Under.
...

Detective Woodfield: And what did he touch your
special spot with?

Sharie: His finger.

Detective Woodfield: His finger and was it on the
inside or the outside?

Sharie: Inside. . . .

Detective Woodfield: . . . Let me ask you this how
many times did that happen?

Sharie: Many times.

Detective Woodfield: And where were you when that
happened?

Sharie: In the bedroom.
...

Detective Woodfield: . . . [D]id you ever see him do
that to anybody else? . . . Did you ever see him do that
to any of your sisters?

                           7
             Sharie: Only [Brianna]. . . .

             Detective Woodfield: . . . Okay did . . . you tell [your]
             Aunt [] he does that?

             Sharie: I tried but he covers my mouth.

             Detective Woodfield: Oh you tried to but he covered
             your mouth . . . ?

             Sharie: (Nods head yes)

             Detective Woodfield: And what did he say when he did
             that?

             Sharie: He told me not to say it.

             ...

             Detective Woodfield: . . . Okay anybody else there
             when [he touched you]?

             Sharie: (Shakes head no)

      Following the interviews, the girls were taken to a medical center where

Pamela Litman, a forensic nurse examiner, completed exams on both girls.

She found a one-millimeter tear on Brianna’s right labia which she testified

was consistent with digital manipulation. Litman did not find any physical

evidence of abuse during Sharie’s examination, but she testified that this

finding was not unusual and in fact that “it is more common to not find injury

than it is to find injury.”




                                        8
       After charges were approved against defendant, Detective Woodfield

and others arrested him. Defendant waived his Miranda3 rights and agreed to

be interviewed by Detective Woodfield. That interview was recorded and

played at trial. At first defendant claimed that he could not recall what

happened. Then, the following exchange occurred:

             Defendant: The only thing I can think of was when I
             was tickling her and (inaudible) she probably slid down
             (inaudible).

             Detective Woodfield: And where was that, in your
             bedroom or living room?

             Defendant: [L]iving room while she started laughing.

             Detective Woodfield: Um, hm.

             Defendant: [B]ecause I’ll start ticklin[g] her because I
             love her laugh.

             Detective Woodfield: She’s a good girl. Which one?
             [Brianna] or [Sharie]?

             Defendant: [Brianna].

             ....

             Detective Woodfield: How many times did that
             happen?

             Defendant: Once.

             ....


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                       9
      Detective Woodfield: Okay. So where, did you put
      your hand under her underwear?
      Defendant: No.

      Detective Woodfield: How did that happen?

      Defendant: [Because] usually she has shorts on her.

      Detective Woodfield: Um, hm. But I know it went like
      inside her vagina. I know your finger went inside her
      vagina. So I just, was it through the pant leg or was it
      down her top?

      Defendant: No, I went (inaudible) like this.

      ....

      Detective Woodfield: Anything else happen?

      Defendant: (shakes head no)

      Detective Woodfield: . . . [S]o you didn’t ever do this
      to [Sharie]?

      Defendant: (shakes head no) If I did I don’t know, I
      don’t remember (inaudible).

      Detective Woodfield: Um, hm. You can’t remember?
      How come you think you can’t remember things?

      Defendant: Because, you know . . . . I used to take my
      blood pressure medicine before work (inaudible).

Defendant later confessed to touching Sharie inappropriately:

      Detective Woodfield: Did you ever . . . do anything
      other than stick your fingers . . . in both of [them]?

      Defendant: (shakes head no)

                                10
            Detective Woodfield: That’s all you did?

            Defendant: (nods head yes)

                                       B.

      Defendant was indicted by an Ocean County grand jury for first-degree

aggravated sexual assault of Sharie, contrary to N.J.S.A 2C:14-2(a); first-

degree aggravated sexual assault of Brianna, contrary to N.J.S.A 2C:14-2(a);

second-degree endangering the welfare of a child, Sharie, contrary to N.J.S.A.

2C:24- 4(a); second-degree endangering the welfare of a child, Brianna,

contrary to N.J.S.A. 2C:24-4(a); and third-degree resisting arrest, contrary to

N.J.S.A. 2C:29-2(a)(3).

      Sharie and Brianna both testified at trial. Sharie’s examination by the

prosecutor included the following interaction:

            Prosecutor: [W]as there ever a time that somebody
            touched you in a way that you didn’t like to be touched?

            Sharie: Yes.

            Prosecutor: Yes, okay. And did that happen a long
            time ago or recently?

            Sharie: A long time ago.

            Prosecutor: A long time ago? And who touched you in
            a way that you did not like to be touched?

            Sharie: I don’t remember.


                                       11
Prosecutor: Okay. Well, let me ask you this, was it a
boy, a girl or something else?

Sharie: A boy.

Prosecutor: A boy. Was it a small boy or a big boy?

Sharie: A big.

Prosecutor: A big boy. And when he touched you,
what part of your body did he touch?

Sharie: Private.

Prosecutor: [W]hat part of his body did he use to touch
your private?

Sharie: Finger.

....

Prosecutor: When this man touched your private with
his finger, did it happen at your house, his house or
someplace else?

Sharie: His house.

....

Prosecutor: Do you remember the name of the lady
who lived in that house?

Sharie: [Claire].

Prosecutor: [Claire]. So there was a lady named
[Claire] who lived in the house with the man who
touched your private [area]; is that true?

Sharie: (Witness indicates)

                          12
            Prosecutor: Yes?

            Sharie: Yes.

            Prosecutor: And it was the man who lived in that house,
            was he the one that touched you?

            Sharie: Yes.

      On redirect, Sharie’s examination by the prosecutor also included the

following exchange:

            Prosecutor: Is this kind of hard to talk about?

            Sharie: Yes.

            Prosecutor: Yes. Do you like talking about what Uncle
            [R] did to you?

            Sharie: No.

            Prosecutor: No. And so is it hard to answer questions
            if a stranger comes and asks you questions about what
            Uncle [R] did?

            Sharie: Yes.

      Defendant testified and denied that he had touched the girls

inappropriately. He testified that his statement to the police was the result of

misleading questions, fear that he might be sent to jail, stress related to his

wife’s recent and third miscarriage, and concern for his family’s financial

welfare.




                                        13
        The State moved to preclude DeAngelis from testifying that Sharie told

him only Darren had touched her inappropriately. The State argued that Sharie

did not clarify that the “bad touch” she experienced was sexual, and so this

statement did not qualify as a false allegation requiring a Guenther hearing.4

The State claimed that the statement regarding Darren’s alleged touching of

Sharie was inadmissible under the Rape Shield Law, N.J.S.A. 2C:14-7, and

that defendant’s failure to notify the court prior to trial barred its admission.

Defendant agreed that Sharie’s statement was not admissible as a prior false

allegation requiring a Guenther hearing. Instead, he argued that Sharie’s

statement to DeAngelis was admissible as a prior inconsistent statement under

N.J.R.E. 803(a)(1). Defendant further argued that Sharie’s accusation against

Darren was admissible to demonstrate third-party guilt.

        The trial court granted the State’s motion, finding that defendant did not

present sufficient evidence of third-party guilt with respect to Darren. The

trial court also held that the Rape Shield Law, N.J.S.A. 2C:14-7(a), barred

DeAngelis’ testimony regarding Darren because defendant had not notified the

court prior to trial that it sought to admit this testimony.

        Pursuant to the trial court’s ruling, DeAngelis testified regarding

statements made by Brianna, and then the court excused the jury to conduct a


4
    State v. Guenther, 181 N.J. 129 (2004).
                                        14
Rule 104 hearing on DeAngelis’ testimony regarding Sharie. During that

hearing, DeAngelis testified that when he discussed the concept of a “good

touch” with Sharie, she said she knew what it was and referred to her arm. In

response to the question: “[D]id she acknowledge if she knew what a bad

touch was?” he answered “She didn’t.” DeAngelis stated that later, “[Sharie]

shook her head [affirmatively] that she knew what [a] bad touch was but she

did not verbally say.” DeAngelis then asked her if anyone “did a bad touch to

her in a bad touch part” and “[s]he said[] yes, it was . . . [Darren].” DeAngelis

then testified that Sharie told him no one else had “done a bad touch on her

bad touch part.”

      On cross-examination, DeAngelis expressed greater uncertainty

regarding Sharie’s understanding of “good touches” and “bad touches”:

             Prosecutor: And also in regards to this conversation
             [with Sharie] about bad touch or good touch, you were
             never able to get clarification from [her] about what she
             was referring to in regards to bad touch; is that correct?

             DeAngelis: That is correct.

             Prosecutor: So, for example, you don’t know whether
             that bad touch was in regards to a pinch, a punch or a
             sexual contact; is that correct?

             DeAngelis: That is correct.

The trial court held that this did not affect its earlier ruling precluding

DeAngelis’ testimony regarding Sharie’s accusation against Darren.
                                         15
      Defendant was convicted of all counts except resisting arrest. He was

sentenced to two concurrent twenty-year terms of incarceration on the

aggravated sexual assault convictions, and two seven-year terms of

incarceration on the endangering convictions to run concurrently to each other

and to the aggravated sexual assault sentences, with an eighty-five percent

period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A.

2C:43-7.2(a).

      Defendant appealed, raising three issues: (1) his right to a fair trial was

violated by the trial court’s decision to exclude DeAngelis’ testimony that

Sharie initially stated Darren had touched her inappropriately; (2) he was

prejudiced by the State’s use of excessively leading questions during direct

examination of Sharie and Brianna; and (3) the sentence imposed was

excessive. The Appellate Division affirmed defendant’s convictions and

sentence. However, the court found that the Rape Shield Law “does not apply

to the present situation” because “it [was] not clear that [Sharie’s] ‘bad touch’

allegation involved sexual activity. Moreover, even assuming it did, the

accusation d[id] not relate to [Sharie’s] sexual conduct, but to abuse against

her by [Darren].”




                                       16
      We granted defendant’s petition for certification. 236 N.J. 619 (2019).

We also granted the motion of the American Civil Liberties Union of New

Jersey Foundation (ACLU) to participate as amicus curiae.

                                        II.

      Defendant argues that his conviction should be reversed because the trial

court erred in excluding evidence relevant to establishing the guilt of a third

party. He argues that DeAngelis’ testimony regarding Sharie’s statement was

a prior inconsistent statement and could have created reasonable doubt with

respect to defendant’s guilt. He further argues that the exclusion of this

statement was not harmless error. Defendant also claims that he was

prejudiced by the State’s use of excessively leading questions when examining

Brianna and Sharie. Lastly, defendant argues that the trial court imposed an

excessive sentence.

      In response, the State argues that DeAngelis’ testimony was

inadmissible hearsay not subject to any hearsay exception and thus cannot be

used as evidence of third-party guilt. Regardless of these points, the State also

argues the failure to admit the statement was harmless. The State further

contends that the trial court properly exercised its discretion in allowing the

State to ask Brianna and Sharie leading questions, and in imposing a sentence.




                                        17
      The ACLU primarily supports defendant’s argument that DeAngelis’s

statement was not inadmissible hearsay and should have been admitted as

evidence of third-party guilt. The ACLU also argues that the trial court erred

in applying the Rape Shield Law to this case.

                                        III.

                                        A.

      Where a “determination made by the trial court concern[s] the

admissibility of evidence, we gauge that action against the palpable abuse of

discretion standard.” Brenman v. Demello, 191 N.J. 18, 31 (2007). A trial

court’s “discretion is abused when relevant evidence offered by the defense

and necessary for a fair trial is kept from the jury.” State v. Cope, 224 N.J.

530, 554-55 (2016). Put another way, an abuse of discretion “arises when a

decision is ‘made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.’” Flagg v. Essex

Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS,

779 F.2d 1260, 1265 (7th Cir. 1985)). “[A] functional approach to abuse of

discretion examines whether there are good reasons for an appellate court to

defer to the particular decision at issue.” Ibid.

      The abuse of discretion standard governs the evidentiary issues before

us, which we will consider in turn.

                                        18
                                       B.

      To begin, we briefly address the trial court’s reliance on the Rape Shield

Law in its decision to preclude DeAngelis’ statement regarding what Sharie

told him. We agree with the Appellate Division that the Rape Shield Law does

not apply in this case. New Jersey’s Rape Shield Law restricts a defendant’s

ability to introduce “[e]vidence of previous sexual conduct with persons other

than the defendant.” N.J.S.A. 2C:14- 7(c). Such evidence “shall not be

considered relevant unless it is material to proving the source of semen,

pregnancy or disease.” Ibid. New Jersey’s Rape Shield Law “is intended to

deter the unwarranted and unscrupulous foraging for character-assassination

information about the victim” and “does not permit introduction of evidence of

the victim’s past sexual conduct to cast the victim as promiscuous or of low

moral character.” State v. Garron, 177 N.J. 147, 165 (2003).

      In State v. Perry, 225 N.J. 222, 236-37 (2016), we provided a two-step

analysis for determining the admissibility of evidence regarding a victim’s

prior sexual conduct.

      However, we need not conduct a Perry analysis here, because the

testimony at issue does not seek “to cast the victim as promiscuous or of low

moral character.” Garron, 177 N.J. at 165. Rather, the testimony is introduced

for the purpose of demonstrating who committed the acts at issue. As such ,

                                       19
the Rape Shield Law does not apply to exclude DeAngelis’ testimony in this

case.

                                        C.

        Because defendant argues that the trial court’s exclusion of DeAngelis’

testimony hindered his ability to present a theory of third-party guilt and

deprived him of the opportunity to present a complete defense, we will review

this Court’s jurisprudence on third-party guilt.

        “The Federal and New Jersey Constitutions guarantee criminal

defendants ‘a meaningful opportunity to present a complete defense.’”

Garron, 177 N.J. at 168 (quoting Crane v. Kentucky, 476 U.S. 683, 690

(1986)). “[B]y implication, a complete defense includes a criminal

defendant’s right to introduce evidence of third-party guilt . . . .” State v.

Cotto, 182 N.J. 316, 332 (2005). In order to do so, “the proof offered [must

have] a rational tendency to engender a reasonable doubt with respect to an

essential feature of the State’s case.” State v. Fortin, 178 N.J. 540, 591 (2004)

(quoting State v. Sturdivant, 31 N.J. 165, 179 (1959)). “That standard does not

require a defendant to provide evidence that substantially proves the guilt of

another, but to provide evidence that creates the possibility of reasonable

doubt.” Perry, 225 N.J. at 238 (quoting Cotto, 182 N.J. at 332).




                                        20
      As we have previously recognized, the concern with respect to claims of

third-party guilt is “the ease in which unsupported claims may infect the

process.” State v. Loftin, 146 N.J. 295, 345 (1996). To avoid that issue, a

defendant may not seek to introduce evidence in order “to prove some hostile

event and leave its connection with the case to mere conjecture.” Sturdivant,

31 N.J. at 179. “[T]he evidence a defendant seeks to admit in support of a

third-party guilt defense must be capable of demonstrating ‘some link between

the [third-party] evidence and the victim or the crime.’” Perry, 225 N.J. at 239

(second alteration in original) (quoting State v. Koedatich, 112 N.J. 225, 301

(1988)). Put another way, “[s]omewhere in the total circumstances there must

be some thread capable of inducing reasonable men to regard the event as

bearing upon the State’s case.” Sturdivant, 31 N.J. at 179. “The decision to

admit or exclude evidence of third-party guilt is ‘particularly fact-sensitive’

and rests within the trial court’s discretion.” Perry, 225 N.J. at 239 (quoting

Loftin, 146 N.J. at 345).

      In Koedatich, we reviewed several cases in which other courts have held

that evidence of third-party guilt should have been admitted, including United

States v. Green, 786 F.2d 247 (7th Cir. 1986). 112 N.J. at 300. In Green, the

defendant argued that someone else could have committed the fraudulent

activity of which he was accused, involving his work as a police officer. 786

                                        21
F.2d at 252. The trial court allowed the defendant to present evidence that

another officer “looked like [him], occupied the adjacent cubicle,” and

participated in activity similar to the fraudulent scheme at issue. Ibid.

However, the court did not allow the defendant to present evidence that the

other officer had previously been convicted of the same offense of which

defendant was accused. Ibid. The Seventh Circuit reversed, finding that the

trial “court erred in thinking that the fact of [the other officer’s] conviction

[was] irrelevant.” Ibid. The panel further explained that the conviction

“increased the chance that if [the other officer] conducted the interviews and

was mistaken for [the defendant,]” he also committed the crimes at issue. Ibid.

      By contrast, in United States v. DeNoyer, the Eighth Circuit determined

that evidence demonstrating that “other deviant sex offenders were operating

in the community . . . was properly excluded as remote and speculative.” 811

F.2d 436, 440 (8th Cir. 1987). The court found that “testimony was pure ‘red

herring’ and had no probative value in establishing the culpability of any party

other than the defendant with respect to the offense involved.” Ibid.

      Here, defendant argues that Sharie’s statement to DeAngelis that “she

knew what a bad touch part was [and] her assertion that Darren was the only

person who had touched her in a bad touch part, created a reasonable doubt” as

to the State’s claims against defendant. The State characterizes Sharie’s

                                         22
statement to DeAngelis as a “vague allegation” in that she did not specify that

she understood what a bad touch meant, and that combined with her other

statements, Sharie’s statement to DeAngelis does not meet the standard

necessary for introduction as evidence of third-party guilt, but could instead

have been referring to some other kind of touch that Sharie did not like. We

disagree and find that Sharie’s statement to DeAngelis could “engender a

reasonable doubt with respect to an essential feature of the State’s case.”

Fortin, 178 N.J. at 591 (quoting Sturdivant, 31 N.J. at 179).

      To begin with, Sharie’s statement was not as “vague” as the State

contends and in fact demonstrates that she did have an understanding of the

difference between a “good” and “bad” touch. Moreover, Sharie’s statement

to DeAngelis did not leave open the possibility that she received more than

one “bad touch” of any kind, as she explicitly stated that Darren was the only

person who had touched her in a bad way. Defendant argues that he does not

need to definitively prove Darren’s touch also involved digital penetration, and

we agree. A jury could find a reasonable doubt that defendant was the person

who assaulted Sharie given her statement to DeAngelis that she knew what a

“bad touch” was and that Darren was the only person who had touched her in a

“bad touch” part. Therefore, we find that Sharie’s statement to DeAngelis

represents sufficient evidence that another person may have committed the

                                       23
crime for which defendant was on trial, as opposed to “mere conjecture.”

Sturdivant, 31 N.J. at 179.

                                       D.

      Having determined that Sharie’s statement was evidence relevant to

third-party guilt, we now must determine whether it would be admissible under

the New Jersey Rules of Evidence. See Cotto, 182 N.J. at 334. We therefore

review our case law regarding prior inconsistent statements.

      “A statement, made other than by a witness while testifying, offered to

prove the truth of the content of the statement is hearsay evidence and is

inadmissible unless it falls within one of the hearsay exceptions . . . .” State v.

Phelps, 96 N.J. 500, 508 (1984). One such exception is N.J.R.E. 803(a)(1),

which provides that “[a] statement previously made by a person who is a

witness at a trial or hearing” that “would have been admissible if made by the

declarant while testifying” is admissible if it “is inconsistent with the witness’

testimony at the trial or hearing and is offered in compliance with Rule 613. ”

The relevant portion of N.J.R.E. 613, in turn, provides that

            [e]xtrinsic evidence of a prior inconsistent statement
            made by a witness may in the judge’s discretion be
            excluded unless the witness is afforded an opportunity
            to explain or deny the statement and the opposing party
            is afforded an opportunity to interrogate on the
            statement, or the interests of justice otherwise require.

            [N.J.R.E. 613(b).]
                                        24
      “The quantum and quality of proof required to establish the antecedent

reliability of a witness’ prior inconsistent statement under N.J.R.E. 803(a)(1)

depends upon the form of the statement and whether it is offered by the party

propounding or adverse to the witness.” State v. Baluch, 341 N.J. Super. 141,

178 (App. Div. 2001). When the inconsistent statement is offered by the

adverse party, there is “no ‘special reliability’ requirement in addition to the

core admissibility requirements of N.J.R.E. 803(a)(1) that the prior statement

be inconsistent with the witness’ trial testimony, offered in compliance with

N.J.R.E. 613, and independently admissible under a hearsay exception.” Ibid.

      Defendant argues that Sharie’s statement to DeAngelis was admissible

as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1). The State

responds that Sharie’s statement to DeAngelis is not inconsistent with her trial

testimony for two reasons. First, her testimony that she did not remember

making the proffered statements was not inconsistent with those statements;

and second, her statement that Darren was the only person who touched her in

the “bad touch place” was not inconsistent with her testimony that defendant

had digitally penetrated her. We disagree.

      With respect to Sharie’s failure to remember her prior statement at trial,

a “judge may . . . conclud[e] under the circumstances the claimed lack of

memory of the event is untrue and in effect an implied denial of the prior
                                        25
statement, thus qualifying [the prior statement] as inconsistent and

nonhearsay.” State v. Brown, 138 N.J. 481, 542 (1994) (quoting 2 McCormick

on Evidence § 251 (4th ed. 1992)), overruled on other grounds by State v.

Cooper, 151 N.J. 326 (1997).

      Further, the prosecutor sought to create an inference from Sharie’s

statement that defendant was the abuser. Following Sharie’s initial testimony

that she did not remember who had touched her, the prosecutor asked if it was

“a boy or a girl” and then refined the question by asking if it was a “small boy

or a big boy”? The prosecutor then began referring to “the man who lived”

with Claire as the person who abused Sharie, to which Sharie agreed. And, on

redirect, the prosecutor’s questioning supplied the identity of the abuser when

she asked, “Do you like talking about what Uncle [R] did to you?” Sharie

replied, “No.” Thus, while Sharie initially stated she did not remember who

abused her, the prosecutor implied that it was defendant and was not

contradicted by Sharie. Based on the uncertainty of the identity of the abuser

and the tenor of the prosecutor’s examination, DeAngelis’ testimony was both

relevant and necessary.

      Because defendant sought to admit extrinsic evidence of Sharie’s

statement by introducing it through the testimony of DeAngelis, it must also

satisfy the requirements of N.J.R.E. 613(b). The State argues that Sharie

                                       26
testified “prior to defense counsel’s attempt to introduce her statement thro ugh

the extrinsic evidence of DeAngelis’ testimony,” and that, as a result, she was

not afforded an opportunity to explain or deny her statement. But Sharie told

the prosecutor on direct examination that she did not remember making the

statement to DeAngelis. Therefore, any attempt by defense counsel to

confront her with that statement would have been futile. We find that the fact

that Sharie had previously testified is irrelevant to the determination of

whether this evidence meets the standard of N.J.R.E. 613(b). Sharie was

available as a witness and could have been questioned by the State if it chose

to do so.

      In sum, we find that Sharie’s statement to DeAngelis is admissible as a

prior inconsistent-statement. We next consider the State’s argument that the

trial court’s error in excluding that statement was harmless.

                                        E.

      An error is harmless if “it is of such a nature as to have been clearly

capable of producing an unjust result.” R. 2:10-2. The potential for an unjust

result “must be real, one sufficient to raise a reasonable doubt as to whether

[it] led the jury to a verdict it otherwise might not have reached.” State v.

Lazo, 209 N.J. 9, 26 (2012) (alteration in original) (quoting State v. R.B., 183

N.J. 308, 330 (2005)). “[W]e consider the importance of [excluded testimony]

                                        27
in the broader context of defendant’s trial.” State v. Bass, 224 N.J. 285, 308

(2016).

      We agree with defendant that the exclusion of Sharie’s statement to

DeAngelis is not harmless error. That statement contradicted her statements

made at trial, to Detective Woodfield, and to Sharie’s mother, and calls into

question the State’s evidence against defendant in Sharie’s case. We therefore

vacate defendant’s convictions for crimes against Sharie and remand for

further proceedings consistent with this opinion.

                                       F.

      Defendant’s final evidentiary challenge applies to the State’s direct

examination of both Sharie and Brianna. Specifically, defendant contends that

the prosecutor’s questions of the child witnesses in this case were excessively

leading.

      “Leading questions should not be used on the direct examination of a

witness except as may be necessary to develop the witness’ testimony.”

N.J.R.E. 611(c). That prohibition is “intend[ed] to encourage testimony from

the witnesses, rather than evidence resulting from the prompting of counsel.”

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 8 to

N.J.R.E. 611 (2016).




                                       28
      However, “[t]rial judges are vested with broad discretion over the mode

of interrogation to ‘make the interrogation . . . effective for ascertainment of

the truth and protect witnesses from harassment or undue embarrassment.’”

State v. Bueso, 225 N.J. 193, 206-07 (2016) (ellipsis in original) (quoting State

v. T.E., 342 N.J. Super. 14, 29-30 (App. Div. 2001)). As such, “leading

questions are frequently permitted in the examination of child witnesses.” Id.

at 207 (citing Biunno, cmt. 8 on N.J.R.E. 611(c) (stating that the questioning

of child witnesses is “[a] prime example” of when leading questions are

necessary)).

      Defendant takes issue with several questions posed to Brianna and

Sharie, including one question that the prosecutor asked Brianna, “And was it

[Darren’s] daddy who touched you?” as well as when the prosecutor asked ,

“But did Uncle [R., Darren’s] daddy, did he touch you with your [sic] hand on

your private?”

      The State does not dispute that some of the questions asked of Brianna

and Sharie were leading. Instead it argues, and we agree, that the leading

questions were appropriate given the witnesses’ young ages and the sensitive

subject matter of their testimony. The testimony of both girls reveals their

obvious hesitancy to speak openly regarding their allegations in public and

demonstrates why some leading questions from the prosecutor were necessary.

                                        29
This case represents a typical example of when leading questions are

appropriate, and we find that the trial court did not abuse its discretion in

allowing the questions. Upon review of the record, the only questions we

found problematic in the context of this trial were those through which the

prosecutor moved from asking the identity of the abuser to supplying that

identity, as noted above.

      We next turn to defendant’s challenge to his sentence for his crimes

against Brianna.

                                       IV.

      Our review of a trial court’s sentencing decision is limited to the abuse

of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). “What

we seek by our review is not a difference in judgment, but only a judgment

that reasonable people may not reasonably make on the basis of the evidence

presented[.]” State v. Roth, 95 N.J. 334, 365 (1984). The appropriate review

consists of “assess[ing] the aggravating and mitigating factors to determine

whether they ‘were based upon competent credible evidence in the record.’”

State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95 N.J. at 364-65).

However, appellate courts may not “‘substitute [their] assessment of

aggravating and mitigating factors’ for the trial court’s judgment.” State v.

Miller, 205 N.J. 109, 127 (2011) (quoting Bieniek, 200 N.J. at 608).

                                        30
      In sentencing defendant , the trial court found aggravating factor two,

the young age of the victims; aggravating factor three, the risk that the

defendant will reoffend; and aggravating factor nine, the need for deterrence.

See N.J.S.A. 2C:44-1(a)(2), (3), and (9). It further found that those factors

substantially outweighed mitigating factor seven, the defendant’s lack of a

criminal history. See N.J.S.A. 2C:44-1(b)(7).

      We need not comment on defendant’s sentencing arguments with respect

to the convictions for crimes against Sharie, and we find no reason to overturn

the trial court’s findings with respect to the aggravating and mitigating factors

leading to the sentence for crimes against Brianna. The factors found were all

supported by “competent credible evidence.” Bieniek, 200 N.J. at 608.

                                       V.

      In sum, we find that the exclusion of admissible evidence of third-party

guilt requires vacation of defendant’s convictions for crimes against Sharie,

and we remand the matter for further proceedings consistent with this opinion.

However, we find no reason to disturb defendant’s convictions or sentence as

to his offenses against Brianna. We disagree with defendant’s contention that

the “allegations of both girls were inextricably linked” and that any error with

respect to the case for crimes against Sharie should lead to the reversal of the

convictions for the crimes committed against Brianna.

                                       31
                                     VI.

      The judgment of the Appellate Division is affirmed in part and reversed

in part. We remand the matter to the trial court for further proceedings

consistent with this opinion.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.




                                      32
