                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0245-14T4
                                                                    A-4603-15T4
STATE OF NEW JERSEY,

          Plaintiff-Respondent.

v.

SIDDHARTH GAUR,

     Defendant-Appellant.
________________________

                   Argued October 19, 2017 – Remanded November 6, 2017
                   Reargued telephonically May 18, 2020 – Decided July 16, 2020

                   Before Judges Rothstadt, Moynihan and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Passaic County, Indictment No. 10-06-
                   0629.

                   Edward J. Dimon argued the cause for appellant
                   (Carluccio Leone Dimon Doyle & Sacks, LLC,
                   attorneys; Edward J. Dimon, of counsel; Marguerite
                   Kneisser, on the briefs).

                   Ali Y. Ozbek, Assistant Prosecutor, argued the cause
                   for respondent (Camelia M. Valdes, Passaic County
                   Prosecutor, attorney; Kirah Michelle Addes, Assistant
                   Prosecutor, of counsel and on the briefs).
PER CURIAM

      In these consolidated appeals, defendant Siddharth Gaur appeals from

his conviction, after trial by jury, for third-degree attempted endangering the

welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A 2C:24-4(a) (count two);

fourth-degree lewdness, N.J.S.A. 2C:14-4(b), as a lesser-included offense of

second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-

2(b) (count three); and second-degree attempted sexual assault, N.J.S.A.
                                                         1
2C:14-2(b) and N.J.S.A. 2C:5-1 (count four),                 stemming from his

communications in a chat room with a Passaic County Sheriff's Office (PCSO)

detective posing as a twelve-year-old girl under the screen name "lalilbrat12."

After defendant filed the notice of appeal from that conviction, the State

moved to strike three expert reports and concomitant portions of defendant's

appellate brief addressing alleged alteration of the State's audio recordings of

conversations between defendant and a second PCSO detective arranging the

meeting between defendant and lalilbrat12. We agreed with the State that the

reports were not part of the trial record, and entered an order granting

            the State's motion to strike . . . the three expert reports
            [defendant] procured after the trial. However, our

1
   Defendant was found not guilty of second-degree attempted luring or
enticing a child, N.J.S.A. 2C:13-6 (count one). The trial judge merged counts
two and three into count four at sentencing.
                                                                           A-0245-14T4
                                       2
             disposition [was] without prejudice to [defendant]
             filing a motion in the trial court to seek relief based
             upon those expert reports, including but not limited to
             granting [defendant's] counsel or his experts access to
             the original audiotape recordings in the State's
             possession. The trial [judge had] jurisdiction to
             consider such a motion despite the pendency of this
             appeal.

Defendant filed a motion for access to the original audio recordings. The

motion judge—who was not the trial judge—denied defendant's motion in a

June 22, 2016 order that provided:

                    The [motion judge] views this request as being
             beyond the legal competence of this [c]ourt to
             consider. . . . [D]efendant's argument in his appellate
             brief, that the State allegedly engaged in a Brady 2
             violation by refusing requests for access to the
             original audio requests and his contention, based on
             the opinion of defense expert . . . that the State
             tampered with the tape recording of certain
             conversations, are issues for the Appellate Division's
             consideration on appeal as to the trial record. There
             has been no limited remand by the Appellate Division
             for the purpose of having the trial [judge] consider
             whether or not . . . defendant, post-jury verdict, should
             be allowed to have access to and to evaluate the
             recording in question to see whether or not they
             contain exculpatory evidence, as . . . defendant
             suggests. The legal basis for such was not articulated
             to this [c]ourt.




2
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                         A-0245-14T4
                                       3
Defendant filed a notice of appeal from that order; we consolidated that appeal

with defendant's first appeal.

      On appeal, defendant argues in various briefs:

            [POINT] I

            THE FAILURE OF THE STATE TO DISCLOSE
            THE AUDIO RECORDING AT TRIAL AS WELL
            AS DEFENDANT'S ATTORNEY'S FAILURE TO
            OBTAIN AN ANALYSIS OF SAME PRIOR TO
            TRIAL WAS A CLEAR VIOLATION OF
            DEFENDANT'S CONSTITUTIONAL RIGHTS.

                   a.    The Audio Recording [O]f [Defendant's]
                         Conversations [W]ith State Agents
                         Contained Critical [A]nd Exculpatory
                         Evidence [W]hich [W]as Required [T]o
                         [B]e Disclosed [B]y [T]he State [A]t
                         Trial. The Failure [O]f [T]he State [T]o
                         [D]o [S]o [W]as [A] Clear Violation [O]f
                         Defendant's   Due     Process    Rights,
                         Mandating Reversal.

                   b.    The Failure [O]f Defendant's Trial
                         Attorney [T]o Obtain [A]n Authentication
                         [A]nd Transcription [O]f [T]he Audio
                         Recording Amounted [T]o [P]er [S]e
                         Ineffective Assistance [O]f Counsel.

            [POINT] II

            THE TRIAL [JUDGE] ERRED IN DENYING
            DEFENDANT'S MOTION FOR JUDGMENT OF
            ACQUITTAL BECAUSE THE STATE FAILED TO
            PROVE THE REQUISITE ELEMENTS OF THE
            OFFENSES BEYOND A REASONABLE DOUBT.

                                                                       A-0245-14T4
                                      4
[POINT] III

THE   PROSECUTOR'S   COMMENTS    AND
CONDUCT DURING THE TRIAL, INCLUDING
THE SUPPRESSION BY THE PROSECUTOR OF
MATERIAL   EVIDENCE    FAVORABLE  TO
DEFENDANT, DEPRIVED DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL AND VIOLATED
DEFENDANT'S DUE PROCESS RIGHTS.

[POINT] IV

DEFENDANT'S     TRIAL    ATTORNEY'S
REPRESENTATION WAS CONSTITUTIONALLY
DEFICIENT.

[POINT] V

THE JURY INSTRUCTIONS DID NOT PROPERLY
INSTRUCT   THE   JURY   ON   ESSENTIAL
ELEMENTS OF THE CHARGES AGAINST
DEFENDANT.

[POINT] VI

THE CONDUCT OF STATE AGENTS CAUSED
THE COMMISSION OF THE CRIME HERE SUCH
THAT DEFENDANT WAS ENTRAPPED.

[POINT VII]

THE TRIAL [JUDGE] ERRED IN ITS FINDING
THAT IT LACKED JURISDICTION TO HEAR
DEFENDANT'S MOTION.

[POINT VIII]


                                         A-0245-14T4
                 5
            THE TRIAL [JUDGE] ERRED IN DENYING
            DEFENDANT'S   MOTION    AS    DEFENDANT
            DEMONSTRATED A FACTUAL BASIS THAT THE
            AUDIO RECORDINGS WERE TAMPERED WITH
            AND FALSIFIED SUCH THAT FURTHER
            ANALYSIS OF THE ORIGINALS IS NECESSARY.

            [POINT IX]

            THE FAILURE OF DEFENDANT'S TRIAL
            ATTORNEY TO OBTAIN AN AUTHENTICATION
            OF THE AUDIO RECORDING AMOUNTED TO
            PER SE INEFFECTIVE ASSISTANCE OF
            COUNSEL.3

Unpersuaded by these arguments, we affirm.

                                       I.

      Turning first to the appeal of the June 2016 order, defendant sought

access to the original recordings of his conversations with the second PCSO

detective— a female who was utilized because the detective who conducted

the chat room conversations with defendant was a male—after submitting three

expert reports in support of his claim that the recordings were altered. The

State did not seek to introduce the recordings at trial, conceding they were

inaudible; the record does not contain the recordings. Defendant's trial counsel

told defendant's appellate counsel he was no longer in possession of the


3
   For convenience and clarity, we have renumbered the point headings in
defendant's A-4603-15 brief as Points VII, VIII and IX.
                                                                       A-0245-14T4
                                      6
recordings the State supplied in discovery. The State would not turn over the

original recordings to defendant.

      Defendant claims the State altered the recordings and did not produce

the original audible recordings, thus preventing defendant from demonstrating

to the jury his reasonable belief the person he chatted with online and who he

expected to meet was an adult woman because she had an adult voice. He also

avers he asked the female during the conversation if she was an adult. He

contends the female PCSO detective offered perjured trial testimony when she

denied defendant asked that question.

      Defendant argues the motion judge erred by concluding he lacked

"competence" to hear defendant's motion.      We previously recognized the

motion judge erred by ignoring our explicit remand for that purpose.          On

November 6, 2017, we vacated the motion judge's order and, retaining

jurisdiction, "remand[ed] the matter back to the Law Division for

consideration of defendant's motion in accordance with our original order."

State v. Gaur, No. A-0245-14 (App Div. Nov. 6, 2017) (slip op. at 4).

      On December 19, 2017, the motion judge ordered the Passaic County

Prosecutor's Office to provide defendant with "cloned duplicates of the




                                                                        A-0245-14T4
                                        7
original files of certain audio recordings[.]" Defendant has not appealed from

that order.

      Furthermore, according to defendant's second supplemental brief on the

second appeal, "[a]fter much back and forth between counsel for [d]efendant

and the Prosecutor's [o]ffice" defendant received "two . . . additional CD[]s

purporting to be the original[.]" Defendant claims in the second supplemental

brief, "the copies provided were not . . . the originals which were ordered to be

disclosed." Both parties filed supplemental briefs and motions. The State

sought to strike material outside the trial record from defendant's brief an d

appendix. Defendant sought to stay the appeal to allow him to file a motion to

enforce litigant's rights extended by the motion judge's December 19, 2017

order and moved to supplement the appellate record.

      On June 29, 2018, we entered orders granting defendant's request for a

stay and leave to file the motion to enforce litigant's rights with the motion

judge. We denied defendant's motion to supplement the record and the State's

motion to strike, both without prejudice to allow refiling after the rem and.

      The motion judge considered defendant's motion to enforce litigant's

rights and entered an order on August 29, 2018, denying the motion, but

ordering defendant's appellate counsel and the State to "agree on a time and


                                                                         A-0245-14T4
                                       8
date for [defendant's] counsel to have access to the original CD [r]ecording in

question so that [his] expert may make any copies" and the State to provide

defendant's "counsel with a report from the [PCSO] regarding the make and

model of the device used to make the original CD recording, if that

information [was] available." Defendant did not appeal from that order.

      In his supplemental brief, defendant states his appellate counsel

contacted his "expert who agreed to communicate with the [PCSO] regarding

the procedure they employed in creating the recording. Thereafter, [d]efendant

filed an updated expert report."

      On February 14, 2019, we denied defendant's motion to supplement the

record with the expert report and granted

            the State's motion to strike the portions of
            [defendant's] brief concerning, and his appendix
            containing the expert reports struck from the record
            pursuant to this court's February 2, 2016 order,
            additional expert reports, dated March 5, 2018, and
            emails that are not part of the trial record. However,
            our disposition [was] without prejudice to [defendant]
            filing a motion in the trial court to seek relief based
            upon his claim the subject tapes were doctored.
            Depending on how the trial [judge] rule[d on the
            motion if it was] filed, either party [could have
            sought] appellate review of the [judge's] ruling in a
            new notice of appeal, which [would have been]
            consolidated with the present appeal.



                                                                      A-0245-14T4
                                      9
            [Defendant was ordered to] file redacted versions of
            his brief and appendix omitting the challenged
            material within [thirty] days of the date of [the] order.

There is no evidence of a subsequent motion by defendant to the motion judge.

      The record manifests defendant's claim of error by the motion judge was

remedied by the motion judge's last order that resulted in access to the original

recording and the method of recording, if not the motion judge's prior order

requiring the State to provide cloned duplicates of the original recordings. In

that defendant did not appeal from those orders, his initial appeal, based on the

motion judge's failure to address his motion for access to the original recoding,

is moot. See Redd v. Bowman, 223 N.J. 87, 104 (2015) ("An issue is 'moot

when our decision sought in a matter, when rendered, can have no practical

effect on the existing controversy.'" (quoting Deutsche Bank Nat'l Tr. Co. v.

Mitchell, 422 N.J Super. 214, 221-22 (App. Div. 2011))).

                                       II.

      We also reject defendant's argument that the State committed a Brady

violation by failing to turn over the original recordings which he contends are

exculpatory evidence. "In order to establish a Brady violation the defense

must demonstrate that (1) the prosecution failed to disclose the evidence; (2)




                                                                        A-0245-14T4
                                     10
the evidence was of a favorable character for the defense; and (3) the evidence

was material." State v. Carter, 85 N.J. 300, 311 (1981).

      Because the State provided the recording to defendant's trial counsel,

and it was later made available to defendant and his expert, defendant has

failed to meet the first prong of the test. So too, defendant has failed to meet

the second prong. All of the alleged proofs of alteration lie outside the trial

record, and all of those proofs have been stricken from the appellate record.

As such, nothing in the record demonstrates the State altered the recordings.

Nor did defendant establish the State suppressed evidence of which it knew,

but was unknown to the defense.       See id. at 313.      And, inasmuch as the

recording of record is inaudible, defendant did not establish, save for his

unsupported arguments, that the original recording contained material,

exculpatory evidence.

      In State v. Morton, 155 N.J. 383 (1998), our Supreme Court observed

"Brady's focus . . . is on the nondisclosure of exculpatory evidence, not on

challenges to the evidence's authenticity." Id. at 413. The Court continued:

            Defendant's argument, that the original tapes, if
            altered, would constitute exculpatory evidence
            under Brady, is too attenuated.    His challenge is
            directed at the authenticity, not the disclosure, of
            evidence. As such, defendant must provide more than
            mere unfounded allegations of tampering to compel

                                                                       A-0245-14T4
                                     11
            the prosecutor to turn over the original tapes for
            testing.

            [Id. at 413-14.]

On the record before us, defendant, like the defendant in Morton, failed to

establish a Brady violation.



                                        III.

      Defendant argues his trial counsel rendered ineffective assistance by

failing "to seek and obtain an analysis of the recording as well as an opinion

regarding its authenticity." He claims he told his trial counsel that the female

PCSO detective "sounded like a much older person." He also urges us to

conclude trial counsel was ineffective for failing to present "the contents of the

audio" to impeach the female PCSO detective's testimony that she was acting

like a twelve year-old during the recorded conversation.

      Again, there is nothing in the record to support defendant's contention

that the recording was altered to render it inaudible. It is undisputed the copy

of the recording provided to trial counsel was inaudible. Furthermore, trial

counsel's reason for accepting that the recording was inaudible and that the

State would not seek to admit it at trial, is absent from the record.



                                                                         A-0245-14T4
                                      12
      "Our courts have expressed a general policy against entertaining

ineffective-assistance of counsel [(IAC)] claims on direct appeal because such

claims involve allegations and evidence that lie outside the trial record." State

v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451,

460 (1992)). Typically, a "defendant must develop a record at a hearing at

which counsel can explain the reasons for his conduct and inaction and at

which the trial judge can rule upon the claims including the issue of

prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991); see

also State v. McDonald, 211 N.J. 4, 30 (2012) (determining that a post-

conviction relief [(PCR)] "proceeding would be the appropriate forum to

evaluate the strategy of defendant's trial counsel . . . and other issues requiring

information that is not in the record before the Court").

      We follow the general policy against entertaining IAC claims here. The

under-developed record on appeal does not allow us to properly evaluate

defendant's claims related to the recording. Those claims are better suited for

a PCR proceeding, especially if defendant eventually establishes that the

recording was altered to conceal material, exculpatory evidence.           So too,

defendant's bald claim that trial counsel failed "to discuss the initial plea offer

with [him] as well as the full consequences of a guilty verdict, including


                                                                          A-0245-14T4
                                      13
deportation," is based on matters outside the trial record; that too, is an

argument better left to a PCR proceeding.

      Defendant also claims his trial counsel was constitutionally deficient

because of "his deferral to the State's misrepresentations regarding the

accessibility of the avatar." The male PCSO detective utilized a cartoon avatar

in portraying "lalilbrat12" during his online chats with defendant.       During

deliberations, the jury requested to see the video recording depicting the

avatar. The trial judge, relying on the State's representation that it "might not

be possible" for the jury to see the avatar on the recording, told the jury "there

[was] no photo of an [a]vatar on the video." Apparently, that information was

mistaken.   Defendant claims trial counsel's failure to correct the mistake

deprived him of the jury's consideration of evidence that was material to his

contention that he believed lalilbrat12 was an adult because the avatar depicted

an adult female.

      The record is bereft of trial counsel's reason for acquiescing to the

State's mistaken advice to the trial judge regarding the avatar. We cannot

ascertain if counsel deduced the cartoon avatar would, contrary to defendant's

present contention, be more associated with a twelve year-old than an adult.




                                                                         A-0245-14T4
                                      14
       Additionally, to establish that his counsel was ineffective, defendant

must satisfy the test formulated in Strickland v. Washington, 466 U.S. 668,

687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

58 (1987).    He must first show "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth

Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). He

must also prove that he suffered prejudice due to counsel's deficient

performance. Strickland, 466 U.S. at 691-92. Defendant must show by a

"reasonable probability" that the deficient performance affected the outcome.

Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome" of the matter. Strickland, 466 U.S. at

694.

       As we will hereafter discuss in our analysis of the motion for judgment

of acquittal in Section IV, there was an abundance of evidence presented by

the State to establish defendant reasonably believed he was interacting with a

twelve year-old. There is no evidence the avatar—a cartoon depiction—would

have countermanded the explicit representations to defendant that lalilbrat12

was age twelve, or that the detectives led defendant to believe the avatar

represented what lalilbrat12 looked like.   Indeed, lalilbrat12 described her


                                                                      A-0245-14T4
                                    15
physical appearance to defendant as four feet, nine inches tall and "like

[eighty-five] pounds," to which defendant replied, "[w]ell you will grow it's

still your age[.]" Thus, accepting that counsel committed an egregious error

by failing to correct the trial judge's advice to the jury regarding the avatar,

thus satisfying the first Strickland-Fritz prong, we do not discern there was a

reasonable probability that failure affected the jury's verdict.




                                        IV.

      For the same reasons we reject defendant's claim, embedded in his

argument that the trial judge erroneously denied his motion for judgment of

acquittal, that the trial judge erred by informing the jury the avatar was not

available to it. While we do not countenance the State's misrepresentation to

the trial judge, or the judge's acceptance of that misrepresentation after

ostensibly seeing the avatar depicted during the trial, the error was not "clearly

capable of producing an unjust result[.]"       R. 2:10-2.    That is, it was not

"sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached." See State v. Macon, 57 N.J. 325,

336 (1971)).


                                                                         A-0245-14T4
                                       16
      Defendant asserts his motion for judgment of acquittal under Rule 3:18-

1 should have been granted because without evidence of masturbation or

sexual content during the online chat, "[t]here is simply insufficient evidence,

beyond a reasonable doubt, to prove [defendant] was touching [himself] for the

purpose of sexual arousal or gratification." He further contends much of the

evidence contradicted the State's proofs that lalilbrat12 was under thirteen

years-old.

      The trial judge did not comply with Rule 1:7-4(a) by stating the findings

of fact and conclusions of law that buttressed her denial of defendant's motion

because she wanted "to bring the jury out." No matter, we review the denial of

a Rule 3:18-1 motion de novo, and conduct an independent assessment of the

evidence, applying the same standard as the trial judge, see State v. Williams,

218 N.J. 576, 593-94 (2014).

      Defendant's argument ignores that standard:

             [T]he broad test for determination of such an
             application is whether the evidence at that point is
             sufficient to warrant a conviction of the charge
             involved. More specifically, the question the trial
             judge must determine is whether, viewing the State's
             evidence in its entirety, be that evidence direct or
             circumstantial, and giving the State the benefit of all
             its favorable testimony as well as all of the favorable
             inferences which reasonably could be drawn


                                                                       A-0245-14T4
                                     17
            therefrom, a reasonable jury could find guilt of the
            charge beyond a reasonable doubt.

            [State v. Reyes, 50 N.J. 454, 458-59 (1967) (citation
            omitted).]

We are "not concerned with the worth, nature or extent (beyond a scintilla) of

the evidence, but only with its existence, viewed most favorably to the State."

State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130

N.J. Super. 336, 342 (App. Div. 1974)).          "If the evidence satisfies that

standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236

(2004). Notwithstanding defendant's countering proofs, the State's proofs, and

the inferences drawn therefrom, met the Reyes standard. See Reyes, 50 N.J. at

458-59.

      Both of defendant's arguments center on some of the elements of second-
                                                            4
degree attempted sexual assault, N.J.S.A. 2C:14-2(b),           which proscribes

committing "an act of sexual contact with a victim who is less than [thirteen]

years old [when] the actor is at least four years older than the victim."

N.J.S.A. 2C:14-1(d) defines sexual contact as:

4
  Defendant's merits-brief arguments do not address the elements of the other
crimes of which he was convicted: third-degree attempted endangering the
welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A 2C:24-4(a) (count two) and the
lesser-included fourth-degree crime of lewdness, N.J.S.A. 2C:14-4(b) (count
three), both of which were merged into the second-degree attempted sexual
assault at sentencing.
                                                                        A-0245-14T4
                                    18
            [A]n intentional touching by the victim or actor, either
            directly or through clothing, of the victim's or actor's
            intimate parts for the purpose of degrading or
            humiliating the victim or sexually arousing or sexually
            gratifying the actor. Sexual contact of the actor with
            himself must be in view of the victim whom the actor
            knows to be present.


The State need not prove defendant masturbated in lalilbrat12's view in order

to establish the requisite criminal elements. "Sufficient victimization occurs

when, in view of an underage child . . . an actor commits an act of sexual

contact by touching himself or herself[.]" State v. Zeidell, 154 N.J. 417, 435

(1998).

      During the male PCSO detective's testimony, he showed video recorded

from defendant's webcam, after he, posing as lalilbrat12, accepted defendant's

invitation to view same on December 9, 2009, the date of the sexual assault

charged in count four of the indictment. On direct examination, the detective

described to the jury what was shown on the screen, the same images that he

saw broadcast from defendant's webcam:

            [ASSISTANT PROSECUTOR:]               Okay.      Now,
            [d]etective, I just paused the video where it says last
            image received at [December 9, 2009] at 10:55:16
            a.m. What was just displayed on the screen?

            [THE DETECTIVE:] It was [defendant] wearing the
            same thing, a white [t]-shirt with the checkered shorts

                                                                       A-0245-14T4
                                     19
            pacing back and forth. And in addition to that you
            could tell that he ha[d] an erection.

            [ASSISTANT PROSECUTOR:] Did you notice if . . .
            defendant was touching it at any point?

            [THE DETECTIVE:] Yes, he was touching it.

      The detective also read the online conversation shown to the jury—as

depicted on the video—between defendant and lalilbrat12 about the

defendant's images, which we quote in part:

            [ASSISTANT PROSECUTOR:] Okay. Now, picking
            up where [l]alilbrat12 says at 10:55:19 a.m., "[w]hat
            are you touching?," question mark. . . . [D]efendant
            says in response?

            [THE DETECTIVE:] "I'm back, N-W" Emotion icon
            with the tongue sticking out.

            [ASSISTANT PROSECUTOR:]           What else does he
            say?

            [THE DETECTIVE:] "You saw it"

            [ASSISTANT        PROSECUTOR:]          And,   then
            [l]alilbrat12 says, "[y]eah I saw you touching your
            thingy"

            [THE DETECTIVE:] "Heyhey"

            [ASSISTANT PROSECUTOR:] And she sends back
            a smiley face.




                                                                    A-0245-14T4
                                    20
[THE DETECTIVE:] "It's itching" [t]hen he sends
another emotion icon that's, ". ."&," two dots with the
quotes and the ampersand sign.

[ASSISTANT PROSECUTOR:]             And [l]alilbrat12
says, "ew wash it"

[THE DETECTIVE:] "I mean M-M-T wearing undies
so it's kind of up t[h]at's why"

[ASSISTANT PROSECUTOR:] "Yeah it looked up"

[THE DETECTIVE:] "Oh"

[ASSISTANT PROSECUTOR:] Smiley face.

[THE DETECTIVE:] "You gonna become bad in my
company"

[ASSISTANT PROSECUTOR:] "You are lol"

[THE DETECTIVE:] "Yes"

[ASSISTANT PROSECUTOR:] Smiley face.

[THE DETECTIVE:] "I hope you forgotten first time
incident"

[ASSISTANT PROSECUTOR:]            "Why you hope?,"
question mark.

[THE DETECTIVE:] "[L]ol"

[ASSISTANT PROSECUTOR:] "[L]ol"

[THE DETECTIVE:] "Cause it's better"

[ASSISTANT PROSECUTOR:] "I guess"

                                                          A-0245-14T4
                        21
            [THE DETECTIVE:] "You're getting naughty"

            [ASSISTANT PROSECUTOR:] "[L]ol"

      Still on direct examination, the detective also described images

broadcast from the webcam recorded later during their online conversation:

            [ASSISTANT PROSECUTOR:] Now, [d]etective, I'm
            going to pause the video where it's a black image
            received at [December 9, 2009], 12:10:32 p.m. Can
            you please describe for the jury and for the record
            what was just displayed on the screen?

            [THE DETECTIVE:]        It's [defendant] exposing his
            penis on web cam.

            [ASSISTANT PROSECUTOR:] Thank you. Was
            [defendant] doing anything with his penis at any point
            in time?

            [THE DETECTIVE:] Yeah, he has his hands over it.

            [ASSISTANT PROSECUTOR:] So he was touching
            his penis?

            [THE DETECTIVE:] That's correct.

            [ASSISTANT PROSECUTOR:]                 Okay.      Now
            [d]etective . . . what was just displayed on the screen
            is what you saw -- is that what you saw that day
            posing as [l]alilbrat12?

            [THE DETECTIVE:] That's correct.




                                                                      A-0245-14T4
                                    22
      During the concomitant online conversation, also depicted on the screen

shown to the jury, defendant clearly indicated he knew he was showing his

penis to lalilbrat12. Moreover, defendant acknowledged on cross-examination

that the video shows him touching his penis "[o]nce or twice[.]"

      The video evidence, the detective's testimony and defendant's own

words, both during the chatroom discussions with lalilbrat12 and on cross-

examination, prove the sexual contact element of sexual assault. Evidence that

his penis was erect leads to the inference that he did so to sexually arouse or

gratify himself.

      There is also ample evidence to establish that the "victim" was less than

thirteen years-old. Not only did lalilbrat12 explicitly tell defendant she was

twelve on a number of occasions, a fact acknowledged by defendant during his

cross-examination, a review of the content and context of the chatroom

discussions—including lalilbrat12's school, activities and homelife—leads to

the inference she was twelve. Particularly telling are the conversations elicited

during defendant's cross-examination when he confirmed that he believed he

was speaking with a twelve-year-old girl when he posed a math problem that

incorporated her age.




                                                                        A-0245-14T4
                                     23
      Viewing this evidence under the Reyes lens, we determine the trial judge

properly denied the Rule 3:18-1 motion.

      Defendant also interjected another argument in the merits brief section

addressing the motion for judgment of acquittal: reversal is required because

the judge allowed the assistant prosecutor and detective to "role play" when

presenting the chatroom conversation between defendant and lalilbrat12, with

the assistant prosecutor reading defendant's words and the detective reading

lalilbrat12's words "in a little girl's voice," which "was extremely prejudicial

and plainly erroneous[.]" We determine the argument is without sufficient

merit to warrant discussion. R. 2:11-3(e)(2). We note trial counsel did not so

characterize the detective's reading when he objected only to the conversations

being presented by two people instead of one. Moreover, in allowing the

presentation to be made by two people, the trial judge observed: "I haven't

denoted any added inflections by [the assistant prosecutor] in any way with

respect to her reading of the one side of the IM message. And the same with

the [d]etective. I think it's been rather flat."

                                          V.




                                                                       A-0245-14T4
                                        24
      Defendant alleges three spheres of prosecutorial misconduct: comments

by the assistant prosecutor during the State's opening, trial and the State's

summation.

      Defendant asserts that during her opening statement the assistant

"[p]rosecutor placed undue and improper emphasis on the [g]rand [j]ury

[i]ndictment," by telling the jury: "As a result of what had transpired between

[l]alilbrat12 and . . . defendant the grand jurors in the State of New Jersey for

the County of Passaic returned a four count indictment against . . . defendant."

Defendant contends in his merits brief that that statement, advising the petit

jury "they should draw a natural inference that [d]efendant was guilty because

'based on this specific evidence' another jury chose to indict," was improper.

      Defendant, however, did not object to the assistant prosecutor's remark.

As such, the remarks generally "will not be deemed prejudicial."         State v.

Timmendequas, 161 N.J. 515, 576 (1999).         "The failure to make a timely

objection not only indicates the defense did not believe the remarks wer e

prejudicial at the time they were made, but also deprives the judge of the

opportunity to take the appropriate curative action." State v. Murray, 338 N.J.

Super. 80, 87-88 (App. Div. 2001).




                                                                        A-0245-14T4
                                     25
        Our review of the record reveals that the assistant prosecutor did not ask

the jury to infer anything from the fact that defendant was indicted by a grand

jury.   We also note the trial judge twice instructed the jury that counsel's

comments were not controlling. At the outset of the trial, the judge instructed

the jury: "What is said in the opening statement is not evidence. The evidence

will come from the witnesses who will testify and from whatever documents or

tangible items that are received in evidence." In her closing instructions, the

judge further explained:      "Arguments, statements, remarks, openings and

summations of counsel are not evidence and must not be treated as evidence."

Moreover, after advising the jury that "defendant [stood] before [it] on an

indictment returned by the grand jury charging him" with the delineated

charges, the judge admonished the jury:

                   The indictment is not evidence of . . .
             defendant's guilt on the charges. An indictment is a
             step in the procedure to bring the matter before the
             [c]ourt and jury for the jury's ultimate determination
             as to whether . . . defendant is guilty or not guilty of
             the charges stated in it.

The jury is presumed to have followed those instructions. See State v. Loftin,

146 N.J. 295, 390 (1996) ("That the jury will follow the instructions given is

presumed.").



                                                                         A-0245-14T4
                                      26
      Under those circumstances, we do not perceive the assistant prosecutor's

fleeting opening comment was "clearly and unmistakably improper" and was

"so egregious that it deprived the defendant of a fair trial." State v. Wakefield,

190 N.J. 397, 438 (2007) (first quoting State v. Papasavvas, 163 N.J. 565, 625

(2000); then quoting State v. Smith, 167 N.J. 158, 181 (2001)).

      Defendant also takes issue with the assistant prosecutor's frequent

comments during the trial about "[w]hat a normal [twelve-]year[-]old girl

would talk about . . . [and] act . . . without providing any evidence to support

her contentions."      And, he highlights those portions of the assistant

prosecutor's summation in which she told the jury

            we know . . . [the 'victim'] ha[d] a screen name[,] . . .
            lalilbrat12, signifying that she[ was] a little girl and
            she[ was] [twelve].

                    ....

                  She talk[ed] like, I submit, . . . any [twelve]
            year[]old. In emoticons, short language. Yeah, he-he,
            LOL. Very laughy, very jovial, very juvenile.


      Defendant avers the assistant "[p]rosecutor made unsupported credibility

determinations and interfered with the jury's role in rendering a verdict." He

argues there was no evidence that lalilbrat12 was twelve years-old, or as to

how girls of that age "would think, feel, or act." The assistant prosecutor's

                                                                         A-0245-14T4
                                      27
comments, he contends were conclusory statements on matters not in evidence,

requiring reversal.

      Again, defendant did not object to the State's summation.       As we

recognized in Murray, 338 N.J. Super. at 87-88:

            "To justify reversal, the prosecutor's conduct must
            have been 'clearly and unmistakably improper,' and
            must have substantially prejudiced defendant's
            fundamental right to have a jury fairly evaluate the
            merits of his defense." [Timmendequas, 161 N.J. at
            575]. "Generally, if no objection was made to the
            improper remarks, the remarks will not be deemed
            prejudicial." Id. at 576. The failure to make a timely
            objection not only indicates the defense did not
            believe the remarks were prejudicial at the time they
            were made, but also deprives the judge of the
            opportunity to take the appropriate curative action.
            Ibid.    In addition, in reviewing a prosecutor's
            summation, we must 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. Engel, 249 N.J. Super. 336, 379
            (App. Div. 1991).

      "Prosecutors 'are afforded considerable leeway in making opening

statements and summations,'" State v. Echols, 199 N.J. 344, 359-60 (2009)

(quoting State v. Williams, 113 N.J. 393, 447 (1988)), and "are expected to

make vigorous and forceful closing arguments to juries," State v. Frost, 158

N.J. 76, 82 (1999).   Nonetheless, a prosecutor's "summation is limited to


                                                                     A-0245-14T4
                                    28
commenting upon the evidence and the reasonable inferences to be drawn

therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).

      "A prosecutor may not express a personal belief or opinion as to the

truthfulness of his or her witness's testimony."    State v. Staples, 263 N.J.

Super. 602, 605 (App. Div. 1993). It is permissible, however, to "argue that a

witness is credible, so long as the prosecutor does not personally vouch for the

witness or refer to matters outside the record as support for the witness's

credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004).

      We have already noted the evidence about lalilbrat12's age. Defendant's

knowledge of same was one of the highly contested issues during the trial.

Indeed, the State's summation responded to the defense summation in which it

was claimed defendant

            believed almost from the very beginning that the
            language of the person who referred to themselves
            lalilbrat12 was the language of an adult and not a
            child.

                  ....

            [T]here was nothing that he ever heard or saw that
            would tell him whether he was dealing with a male, a
            female, or what the age of that person might be.

      The assistant prosecutor addressed that contention and properly confined

her closing remarks to the evidence and the reasonable inferences that could be

                                                                       A-0245-14T4
                                     29
drawn therefrom, see State v. Johnson, 287 N.J. Super. 247, 265 (App. Div.

1996), in proving a required element of all the indicted charges: lalilbrat12's

age. We discern no error, much less a plain one "clearly capable of producing

an unjust result[.]" R. 2:10-2. Under the harmless error standard, there must

be "some degree of possibility that [the error] led to an unjust verdict. The

possibility 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. Bankston, 63 N.J. 263, 273 (1973). The State's summation, to which

no objection was lodged, does not present any such possibility.

      The same holds true for the assistant prosecutor's closing remark that

"what we saw on video was [defendant] touching himself for sexual

gratification or arousal," which defendant argues was not supported by the

evidence. Defendant concedes the State was required to prove as an element

of sexual assault that defendant touched himself for the purpose of sexual

arousal or sexual gratification. Obviously, the video provided evidence of the

touching.   And, as we recognized, defendant's erection was evidence from

which the jury could find the required element. The assistant prosecutor's

comment was proper.




                                                                       A-0245-14T4
                                    30
      The assistant prosecutor's description of the condom found on defendant

when he was arrested, however, was improper. She properly responded to trial

counsel's closing remark:

                   What does the [S]tate point to in an attempt to
            convince you that [defendant] was going to commit a
            sexual offense? Well, one of the things they pointed
            to was a condom that he had in his wallet. I ask you if
            you think it's unusual for a [twenty-nine]-year-old
            single male to walk around with a condom in his
            wallet. I submit to you that nowadays it's not unusual
            for a [twenty-nine]-year-old single woman to be
            walking around with a condom in her wallet or
            pocketbook. It's just something that's more common
            since the advent of AIDS and everything else, and
            there's more sexual freedom than we've had in the
            past. This is not an unusual thing. The fact that you
            happen to be carrying one around with you proves
            nothing.

In doing so, however, she told the jury:

            [The detectives] found a condom on him. Sure, that's
            not uncommon. You know, given this day and age,
            some people carry condoms, a condom in their wallet.
            You know, females even carry condoms. But I submit
            to you, ladies and gentlemen, how common is it to
            carry a strawberry[-]flavored condom with you? A
            strawberry[-]flavored condom. You know, it's a
            flavor, it's sweet, it's candy-like. Perhaps because kids
            like candy. [Twelve]-year-old girls like candy. Who
            knows?

There is no evidence in the record that the condom was strawberry-flavored.



                                                                        A-0245-14T4
                                     31
      No objection was interposed by defendant. Under the now-familiar lens

under which we view such remarks, we can infer that the description was of no

moment in the context of the trial. State v. Ingram, 196 N.J. 23, 42-43 (2008).

"Any error or omission shall be disregarded by the appellate court unless it is

of such a nature as to have been clearly capable of producing an unjust

result[.]" R. 2:10-2. Under the harmless error standard, there must be "some

degree of possibility that [the error] led to an unjust verdict. The possibility

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." Bankston, 63 N.J. at

273. The brief description, especially in light of the evidence of defendant's

actions and intent, was harmless error.

      Defendant also avers in his merits brief that the assistant prosecutor

improperly attempted to interject "how she acted as a teenager" when cross-

examining defendant. When the assistant prosecutor responded to defendant's

testimony about the likelihood of online interaction between a twenty-nine

year-old adult and a pre-teen or teenager, the assistant prosecutor replied,

"[w]ell, what if I told you that when I was [seventeen.]" Her statement was

interrupted by trial counsel's objection.    The trial judge agreed and, as

defendant concedes in his merits brief, the assistant prosecutor "was not


                                                                       A-0245-14T4
                                     32
permitted to continue[.]" The assistant prosecutor's incomplete thought had no

impact on the trial.

                                      VI.

      Defendant argues that his "conviction must also be reversed because the

jury was not instructed properly," claiming "the jury instructions provided no

guidance to the jury on an essential element of the offense, namely, the

definition of sexual arousal or gratification," without which, the jury "was

merely left to imply a definition in this regard." We disagree.

      Defendant did not object to the judge's instruction which largely

mirrored the Model Jury Charges (Criminal), "Sexual Assault - Victim Less

Than [Thirteen] Actor At Least [Four] Years Older Than Victim (N.J.S.A.

2C:14-2(b))" (rev. Mar. 10, 2008):

                   The statute . . . in pertinent part states: [A]n
            actor is guilty of sexual assault if he commits an act of
            sexual contact with a victim who is less than [thirteen]
            years old and the actor is at least four years older than
            the victim.

                  In order to convict defendant of this charge, the
            [S]tate must prove the following elements beyond a
            reasonable doubt:

                  One. . . . [D]efendant purposely committed an
            act of sexual contact by touching himself and the
            touching was in view of lalilbrat12, who . . . defendant
            knew was present.

                                                                        A-0245-14T4
                                     33
                     Two. . . . [D]efendant reasonably believed that
              lalilbrat12 was less than [thirteen] years old at the
              time of the sexual contact.

                     And three. At the time of the sexual contact,
              defendant was at least four years older than
              lalilbrat12.


Following the model charge, the judge instructed the jury: "Sexual contact

means an intentional touching by . . . defendant, either directly or through

clothing, of . . . defendant's intimate parts for the purpose of degrading or

humiliating lalilbrat12 or sexually arousing or gratifying defendant."

        There is a presumption that the failure to object reflected the defendant's

evaluation that the charge was not erroneous and was unlikely to prejudice his

case.     Macon, 57 N.J. at 333-34.         Accordingly, in the absence of a

contemporaneous objection, any claim of error concerning a jury charge is

reviewed under the plain error standard and will be disregarded "unless it is of

such a nature as to have been clearly capable of producing an unjust result[.]"

R. 2:10-2.     In the context of jury instructions, plain error is a "legal

impropriety . . . prejudicially affecting the substantial rights of the defendant

and sufficiently grievous to . . . convince the court that of itself the error

possessed a clear capacity to bring about an unjust result." State v. Hock, 54


                                                                          A-0245-14T4
                                       34
N.J. 526, 538 (1969). Not any possibility of an unjust result will suffice as

plain error, only "one sufficient to raise a reasonable doubt as to whether the

error led the jury to a result it otherwise might not have reached." Macon, 57

N.J. at 336.

      We discern no error, much less plain error, in the judge's charge which

gave "a clear explanation of the applicable law to provide the jury with an

adequate understanding of the relevant legal principles." State v. Hackett, 166

N.J. 66, 85 (2001). Model jury charges are frequently beneficial to trial courts in

performing the imperative function of charging a jury. State v. Concepcion, 111

N.J. 373, 379 (1988). The model charge does not define "sexual arousal" or

"sexual gratification." Those terms are left to their plain meaning.

      There is no evidence the jury had difficulty understanding those

meanings. The judge twice told the jurors that if, during deliberations, any

juror had a question or felt the need for "further assistance or instructions," she

or he should write the question or request for submission to the judge. The

judge also gave the jury two copies of the instructions and told the jurors she

was "available to assist [them] in understanding the instructions if [they]

need[ed] further assistance." No juror request involved the definitions of the

disputed terms. When the charges are "clear and accurate, . . . we generally


                                                                          A-0245-14T4
                                      35
must assume that the jury followed such a charge." State v. Davis, 390 N.J.

Super. 573, 598 (App. Div. 2007).

                                         VII.

      Contrary to defendant's argument that, because there was "clear evidence

that [defendant] was entrapped by the State," the trial judge committed plain

error by failing to sua sponte instruct the jury on the defense of entrapment,

the judge did instruct the jury consistent with the Model Jury Charges

(Criminal), "Entrapment (N.J.S.A. 2C:2-12)" (approved Jan. 12, 1982).

      Affirmed.




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                                    36
