STATE OF NEW JERSEY VS. E.R.-L. (17-09-0638, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )


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  •                                       RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3188-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    E.R.-L.,
    Defendant-Appellant.
    ________________________
    Submitted November 16, 2020 – Decided December 2, 2021
    Before Judges Currier, Gooden Brown and DeAlmeida.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Indictment No. 17-09-0638.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Alison Gifford, Assistant Deputy Public
    Defender, of counsel and on the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Steven Cuttonaro, Deputy Attorney
    General, of counsel and on the brief).
    The opinion of the court was delivered by
    DeALMEIDA, J.A.D.
    Defendant E.R.-L.1 appeals his conviction after a jury trial of two crimes
    relating to the sexual abuse of his minor stepdaughter, as well as from the
    subsequently imposed ten-year sentence. We affirm.
    I.
    Anna was eight and nine years old when she lived with defendant and her
    mother, who were married. Anna was close to defendant in his role as her
    stepfather. The three lived together in Union County. In 2016, they moved to
    Hudson County.
    In 2017, after a medical examination revealed an infection in her genital
    area, Anna told a detective that defendant sexually abused her. Anna's interview
    was recorded. When later questioned by a detective, defendant admitted to
    committing various acts of sexual abuse on Anna at the family's Union County
    home and their Hudson County home.          He admitted that the sexual abuse
    escalated in severity after the family moved to Hudson County. Defendant's
    statement also was recorded.
    A Hudson County grand jury indicted defendant, charging him with: (1)
    first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); (2) second-degree
    1
    We identify defendant by his initials and adopt a pseudonym for the victim to
    protect her identity. R. 1:38-3(c)(9).
    A-3188-18
    2
    sexual assault, N.J.S.A. 2C:14-2(b); (3) second-degree endangering the welfare
    of a child, N.J.S.A. 2C:24-4(a)(1); and (4) fourth-degree diseased person
    committing an act of sexual penetration, N.J.S.A. 2C:34-5(a).2 Each of the
    charges in the indictment relate only to the alleged sexual abuse by defendant in
    Hudson County.
    The parties made several pretrial motions. The trial court concluded that
    defendant made a knowing, intelligent, and voluntary waiver of his rights under
    Miranda v. Arizona, 
    384 U.S. 436
     (1966), and that his recorded statement was
    admissible. In addition, the court held that Anna's recorded interview was
    admissible under N.J.R.E. 803(c)(27), the tender years exception to the hearsay
    rule. The court also granted the State's application to allow Anna to testify at
    trial by closed circuit television (CCTV) pursuant to N.J.S.A. 2A:84A-32.4
    (allowing CCTV testimony at trial "if the court determines by clear and
    convincing evidence that there is a substantial likelihood that the victim or
    witness would suffer severe emotional or mental distress if required to testify in
    the presence of spectators, the defendant, the jury, or all of them."). Defendant
    2
    The fourth count of the indictment was dismissed prior to trial.
    A-3188-18
    3
    did not move before trial to bar the admission of evidence of his sexual abuse of
    Anna in Union County.
    In her opening statement, the assistant prosecutor referred to defendant's
    recorded statement, noting that the jury will hear defendant admit to sexually
    abusing Anna and concede that "it started when they were living as a family in
    [Union County] and that it continued when they moved to [Hudson County]."
    The assistant prosecutor continued:
    You'll hear him explain that when they were in [Union
    County], he only touched her . . . vagina over the
    clothes . . . that's as far as it went.
    ....
    And, you'll hear him explain that "I've always tried to
    truthfully when the curiosity came, what I did was
    move her away from me." But, when they moved to
    [Hudson County], this defendant went even further than
    just touching her vagina. And, as he put it – this is what
    he says, "[t]he curiosity took me too far."
    Defendant's counsel did not object to these statements.
    At trial, Anna's recorded interview and defendant's recorded statement
    were admitted as evidence. In addition, Anna, then ten-years old, testified via
    CCTV from the judge's chambers. Defendant, the judge, and the jury were able
    to see and hear Anna, but she could not see defendant or the courtroom. Anna
    recounted defendant's sexual abuse. She was not asked to specify the location
    A-3188-18
    4
    at which the sexual abuse took place, but described acts consistent with the
    sexual abuse defendant admitted in Hudson County.
    Defendant also testified. He denied having sexually abused Anna and said
    he falsely implicated himself when questioned by the detective because he was
    unemployed and mistakenly believed the government would financially support
    his family if he were incarcerated. Defendant's recorded interview included
    these and similar statements he made out loud to himself in the empty room
    when the detective was not present:
    What did I do? God my god everything is a lie my God
    please God. . . . Everything is a lie but if [Anna] said
    it I have to say it. . . . Forgive me for all my sins,
    forgive me. I know I am guilty.
    ....
    I cannot stand this poverty anymore. . . . Could it be
    that I will be better in there in jail or worse? I don't
    care. That they give my wife all the help, the
    government, since I am not going to be there . . . .
    ....
    I am a monster, because of what I said, I am a monster
    . . . you would know that is best God. They mistreated
    [Anna] so that she would say that, you know what is
    best.
    ....
    A-3188-18
    5
    Please God, you know I am doing right, that they give
    her all the help so she can have her children, let them
    give her all the help, from the government please. I
    cannot give her anything. . . . She will be better like
    this my wife without me I am a nuisance to her.
    ....
    I am declaring myself guilty, guilty, guilty, I am guilty,
    I am guilty God.
    ....
    My sister told me [Anna] can lie, can lie, lie a lot, but
    alright God, I said what I said. They have to believe
    me, alright.
    ....
    It is the best thing God . . . to declare myself guilty so
    that my family is better . . . you are going to help them.
    With respect to the consistency in the details of his confession with Anna's
    statement, defendant testified that before he was questioned, he spoke with his
    wife about Anna's sexual abuse allegations. He testified that when questioned
    by the detective he "followed along with" what his wife had told him and
    "heightened what [he] said to make it more credible."
    During her closing statement, the assistant prosecutor again commented
    on defendant's recorded statement. She told the jury:
    You heard [defendant] admit that he touched [Anna's]
    vagina with his hands on several occasions. . . . That
    A-3188-18
    6
    it began when they started living as a family in [Union
    County] and that it continued when they moved to
    [Hudson County]. And he explained it got worse, that
    he was no longer able to control the urges and that when
    they moved to [Hudson County], he admitted to it
    getting worse. . . . What you heard from defendant's
    mouth was specific and unique details that he could
    only know if he was there and it really happened. Some
    of these details he told you about was that he said it
    started in [Union County].
    Defendant's counsel did not object to these comments.
    In its initial and final jury charges, the trial court delivered the model
    charge on the general credibility of witnesses. The court gave the following
    instruction regarding defendant's recorded statement:
    There is, for your consideration in this case, a recorded
    statement . . . made by the defendant . . . . It is your
    function to determine whether any portion of
    [defendant's] statement is credible. You may consider
    all the circumstances surrounding the statement in
    making that determination . . . .
    The court gave no instructions regarding Anna's recorded statement or her
    testimony by CCTV. Defendant did not object to the jury instructions.
    The jury found defendant guilty of second-degree sexual assault and
    second-degree endangering the welfare of a child and acquitted him of first-
    degree aggravated sexual assault.
    A-3188-18
    7
    At sentencing, the judge found aggravating factor two, N.J.S.A. 2C:44-
    1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim, including
    whether or not the defendant knew or reasonably should have known that the
    victim of the offense was particularly vulnerable or incapable of resistance due
    to advanced age, ill-health, or extreme youth, or was for any other reason
    substantially incapable of exercising normal physical or mental power of
    resistance . . . ."). In support of this aggravating factor, the court noted the
    "vulnerability of the victim" and found that Anna was "nine years old at the
    time. And there was the trust and love between the child and her stepfather." In
    addition, the court found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he
    need for deterring the defendant and others from violating the law . . . ."). The
    court "weigh[ed] that [factor] heavily." The court also found mitigating factor
    seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he defendant has no history of prior
    delinquency or criminal activity or has led a law-abiding life for a substantial
    period of time before the commission of the present offense . . . .").
    Being "clearly convinced that the aggravating factor[s] substantially
    outweigh the mitigating factor[,]" the court sentenced defendant: (1) on his
    conviction for second-degree sexual assault to a ten-year term of imprisonment,
    with an eighty-five percent period of parole ineligibility pursuant to the No Early
    A-3188-18
    8
    Release Act, N.J.S.A. 2C:43-7.2; and (2) on his conviction for second-degree
    endangering the welfare of a child to a seven-year term of imprisonment. The
    court ordered the two sentences be served concurrently.
    This appeal followed. Defendant raises the following arguments.
    POINT I
    DEFENDANT WAS DEPRIVED OF DUE PROCESS
    AND A FAIR TRIAL BY THE ADMISSION OF
    UNCHARGED ACTS OF SEXUAL ABUSE. (Not
    Raised Below).
    A.   N.J.R.E. 404(b) Mandated Exclusion of the
    Uncharged Criminal Conduct Because It Served
    Only as Unlawful Propensity Evidence.
    B.   Evidence of Defendant's Conduct in
    [Union County] is Not Admissible as "Intrinsic
    Evidence."
    C.    Even If Admissible, the Trial Court's
    Failure to Give A Limiting Instruction Denied
    [Defendant] a Fair Trial.
    POINT II
    THE INADEQUATE JURY INSTRUCTIONS
    REGARDING THE CCTV TESTIMONY AND THE
    PRE-TRIAL STATEMENTS REQUIRE REVERSAL
    OF THE CONVICTIONS. (Not Raised Below).
    A.    The Use of CCTV Testimony Without a
    Cautionary Instruction Deprived Defendant of a
    Fair Trial.
    A-3188-18
    9
    B.    The Jury Instruction on Defendant's Pre-
    Trial Statement Was Inadequate Because It
    Failed to Inform the Jury to Disregard Any
    Portion of the Statement Found Not to be
    Credible.
    C.    The Court Provided Inadequate Guidance
    to The Jury on How to Evaluate [Anna's] Pre-
    Trial Statement.
    POINT III
    THE CUMULATIVE IMPACT OF THE ERRORS
    DENIED DEFENDANT A FAIR TRIAL. (Not Raised
    Below).
    POINT IV
    IF THE CONVICTIONS ARE NOT REVERSED, THE
    MATTER MUST BE REMANDED FOR A
    RESENTENCING     BECAUSE    THE   COURT
    ENGAGED     IN  IMPERMISSIBLE    DOUBLE
    COUNTING.
    II.
    Because defendant did not object to the admission of the evidence
    concerning his alleged sexual abuse of Anna in Union County, we review the
    record under the plain error standard for an error "clearly capable of pro ducing
    an unjust result . . . ." State v. Whitaker, 
    200 N.J. 444
    , 465 (2009) (quoting R.
    2:10-2). "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-3188-18
    10
    a result it otherwise might not have reached.'" State v. Coclough, 
    459 N.J. Super. 45
    , 51 (App. Div. 2019) (quoting State v. Macon, 
    57 N.J. 325
    , 336
    (1971)).
    Even where an objection has been raised, we review a trial court's
    evidentiary rulings with deference. State v. Hyman, 
    451 N.J. Super. 429
    , 441
    (App. Div. 2017). "[T]he decision to admit or exclude evidence is one firmly
    entrusted to the trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas.
    Ins. Co., 
    202 N.J. 369
    , 383-84 (2010). An abuse of discretion is found only
    when the court has made a "clear error of judgment." State v. Koedatich, 
    112 N.J. 225
    , 313 (1988). The court's evidentiary decision should be sustained
    unless it resulted in a "manifest denial of justice." State v. Perry, 
    225 N.J. 222
    ,
    233 (2016) (quoting State v. Marrero, 
    148 N.J. 469
    , 484 (1997)).
    Because defendant failed to raise the issue before the trial court, our
    review is hampered by the fact that the State and defendant did not have an
    opportunity to create a full record tailored to the relevant precedents regarding
    admission of evidence relating to prior acts and appropriate limiting
    instructions. We are, therefore, constrained to analyze defendant's arguments
    against the sparse record.
    N.J.R.E. 404(b) provides, in relevant part, as follows:
    A-3188-18
    11
    (b)   Other Crimes, Wrongs, or Acts.
    (1) Prohibited Uses. Except as otherwise provided
    by Rule 608(b), 3 evidence of other crimes, wrongs, or
    acts is not admissible to prove a person's disposition in
    order to show that on a particular occasion the person
    acted in conformity with such disposition.
    (2) Permitted Uses. This evidence may be admitted
    for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge,
    identity or absence of mistake or accident when such
    matters are relevant to a material issue in dispute.
    The Supreme Court established four factors to be weighed when deciding if
    other crimes evidence is admissible under N.J.R.E. 404(b):
    1.   The evidence of the other crime must be
    admissible as relevant to a material issue;
    2.    It must be similar in kind and reasonably close in
    time to the offense charged;
    3.   The evidence of the other crime must be clear and
    convincing; and
    4.   The probative value of the evidence must not be
    outweighed by its apparent prejudice.
    [State v. Cofield, 
    127 N.J. 328
    , 338 (1992).]
    "Because evidence of a defendant's previous misconduct 'has a unique tendency'
    to prejudice a jury, it must be admitted with caution." State v. Willis, 
    225 N.J. 3
     Rule 608(b) is not applicable here.
    A-3188-18
    12
    85, 97 (2016) (quoting State v. Reddish, 
    181 N.J. 553
    , 608 (2004)). "Prior-
    conduct evidence has the effect of suggesting to a jury that a defendant has a
    propensity to commit crimes, and, therefore, that it is 'more probable that he
    committed the crime for which he is on trial.'" Id. at 97 (quoting State v. Weeks,
    
    107 N.J. 396
    , 406 (1987)).
    We reject the State's argument that the Union County sexual assaults were
    intrinsic to the Hudson County offenses and, as a result, not subject to Rule
    404(b). See State v. Rose, 
    206 N.J. 141
     (2011). The Union County sexual
    assaults do not directly prove, were not performed contemporaneously with, and
    did not facilitate the charged offenses. 
    Id. at 180
    . While part of an escalating
    pattern of behavior with the same victim, the Union County sexual assaults were
    not elements of the sexual assaults that formed the basis of the counts of the
    indictment. That evidence was, therefore, prior-conduct evidence.
    We agree that admission of evidence of the Union County sexual assaults
    was error. In reaching this conclusion, we are guided by the holding in State v.
    J.M., Jr., 
    225 N.J. 146
     (2016). In that case, the defendant was a massage
    therapist charged with sexually assaulting a client while giving her a massage.
    
    Id. at 150
    . The defendant denied any sexual contact with the victim during the
    massage. 
    Id. at 153
    .
    A-3188-18
    13
    Prior to trial, the State moved to admit evidence that the defendant had
    committed a similar sexual assault against a female client years earlier while
    working as a massage therapist in Florida. 
    Ibid.
     The Florida incident resulted
    in criminal charges of which the defendant was acquitted by a jury. 
    Ibid.
     After
    conducting a hearing at which the Florida client testified, the trial court admitted
    the evidence of the Florida sexual assault under Rule 404(b), as relevant to
    motive, intent, plan, and/or absence of mistake. 
    Id. at 154
    .
    On leave to appeal, the Supreme Court reversed. The Court held that "[i]n
    a case in which a defendant contends the alleged assault did not occur, intent
    and absence of mistake are not at issue. In the absence of a genuinely contested
    fact, other-crime evidence is irrelevant and the first Cofield prong cannot be
    satisfied." 
    Id. at 159
     (footnote omitted). The Court explained that when a
    "[d]efendant does not argue that the alleged sexual assault . . . was consensual
    or accidental[,]" evidence of a prior alleged sexual assault "is inadmissible to
    establish motive, intent, or absence of mistake because defendant's state of mind
    is not a 'genuinely contested' issue in the case." 
    Id. at 160
     (quoting Willis, 225
    N.J. at 98); compare State v. Oliver, 
    133 N.J. 141
    , 155 (1993) (holding that when
    a defendant claims sexual acts that are the subject of a charged offense were
    A-3188-18
    14
    consensual, he puts his state of mind at issue, opening the door to the admission
    of evidence of previous conduct).
    Nor, the Court explained, was the prior-conduct evidence admissible "for
    proof of plan, because it is insufficient to 'establish the existence of a larger
    continuing plan of which the crime on trial is a part[.]'" 
    Id. at 160
     (quoting State
    v. Stevens, 
    115 N.J. 289
    , 306 (1989) (alterations in original)). "A 'strong factual
    similarity' between the two sexual assaults is not enough to reveal a plan." Id.
    at 160 (quoting Stevens, 
    115 N.J. at 305
    ). Finally, the Court found that the
    probative value of the evidence of the Florida sexual assault was outweighed by
    its potential for undue prejudice – "namely, the jury's inevitable assumption that
    defendant has a propensity to engage in such conduct . . . ." Id. at 161.
    We recognize that the facts in the present appeal differ from those before
    the Court in J.M., Jr. The prior conduct in J.M., Jr. involved a sexual assault
    against a different victim than in the charged offense. In addition, the prior
    conduct was remote in time and place from the charged conduct. Here, the
    uncharged Union County sexual assaults were against the same victim and
    immediately preceded the charged conduct, which took place after the family
    moved to a neighboring county. We do not view these distinctions as sufficient
    to depart from the holding in J.M., Jr., which was based on the absence of a
    A-3188-18
    15
    contested issue about which the previous conduct was relevant when, as is the
    case here, the defendant denied the sexual conduct that was the basis of the
    charged offense.
    We note too that the defendant in J.M., Jr. consistently denied having
    sexually assaulted the victim. Defendant, on the other hand, made a detailed
    recorded confession admitting to both the sexual assaults on which the charges
    were based and the uncharged Union County sexual assaults. By the time of
    trial, however, defendant had recanted his confession and denied having
    engaged in any sexual contact with Anna.          Despite his prior confession,
    defendant was, at least for the purposes of the admissibility of evidence of prior
    conduct, in the same posture as the defendant in J.M., Jr. at the time that
    evidence of the Union County sexual assaults was presented to the jury.
    Having carefully reviewed the record, however, we conclude that
    admission of the evidence of the Union County sexual assaults was not clearly
    capable of producing an unjust result. The jury was presented with the task of
    deciding which of two versions of events was more credible: Anna's testimony
    that defendant sexually assaulted her in Hudson County, which was consistent
    with her recorded statement to a detective, or defendant's denial of having
    engaged in any sexual activity with Anna, which was contradicted by his
    A-3188-18
    16
    recorded confession to having sexually assaulted her in both Union County and
    Hudson County. The fact defendant admitted and subsequently recanted the
    Union County sexual assaults does not tend to make either witness's testimony
    regarding the Hudson County sexual assaults more or less credible. Either the
    jury believed Anna's account of defendant's sexual assaults in Hudson County
    or defendant's recantation of his confession to having sexually assaulted with
    his stepdaughter in both Union County and Hudson County.
    The Union County sexual assaults were part and parcel of defendant's
    confession in which he identified his growing "curiosity" as the motivation for
    the sexual assaults. The Union County allegations did not have the tendency to
    suggest a propensity on defendant's part to sexually abuse Anna, given that they
    did not concern sexual assaults against a different victim or against Anna but
    remote in time and place from the charged conduct. We are not convinced that
    the evidence of the Union County sexual assaults was sufficient to raise a
    reasonable doubt that the jury reached a result that it might not have otherwise
    reached had it heard evidence only of the Hudson County sexual assaults.
    III.
    It is well-settled that “[a]ccurate and understandable jury instructions in
    criminal cases are essential to a defendant's right to a fair trial.”   State v.
    A-3188-18
    17
    Concepcion, 
    111 N.J. 373
    , 379 (1988). However, "[i]f the defendant does not
    object to the charge at the time it is given, there is a presumption that the charge
    was not error and was unlikely to prejudice the defendant's case." State v.
    Singleton, 
    211 N.J. 157
    , 182 (2012). Therefore, "the failure to object to a jury
    instruction requires review under the plain error standard." State v. Wakefield,
    
    190 N.J. 397
    , 473 (2007).
    As applied to a jury instruction, plain error requires
    demonstration of "legal impropriety in the charge
    prejudicially affecting the substantial rights of the
    defendant and sufficiently grievous to justify notice by
    the reviewing court and to convince the court that of
    itself the error possessed a clear capacity to bring about
    an unjust result."
    [State v. Chapland, 
    187 N.J. 275
    , 289 (2006) (quoting
    State v. Hock, 
    54 N.J. 526
    , 538 (1969)).]
    The mere possibility of an unjust result is not enough to warrant reversal of a
    conviction. State v. Jordan, 
    147 N.J. 409
    , 422 (1997). "The error must be
    considered in light of the entire charge and must be evaluated in light 'of the
    overall strength of the State's case.'" State v. Walker, 
    203 N.J. 73
    , 90 (2010)
    (quoting Chapland, 
    187 N.J. at 289
    ).
    "[W]e must read the charge as a whole." State v. Townsend, 
    186 N.J. 473
    ,
    499 (2006). "[T]he prejudicial effect of an omitted instruction must be evaluated
    in light of the totality of the circumstances including all the instructions to the
    A-3188-18
    18
    jury, [and] the arguments of counsel." 
    Ibid.
     (alteration in original) (quoting
    State v. Marshall, 
    123 N.J. 1
    , 145 (1991)). A defendant is entitled to a charge
    that is "accurate and that does not, on the whole, contain prejudicial error." State
    v. LaBrutto, 
    114 N.J. 187
    , 204 (1989). "The test to be applied . . . is whether
    the charge as a whole is misleading, or sets forth accurately and fairly the
    controlling principles of law." State v. Baum, 
    224 N.J. 147
    , 159 (2016) (quoting
    State v. Jackmon, 
    305 N.J. Super. 274
    , 299 (App. Div. 1997)).
    In J.M., Jr., the Court held that when prior-conduct evidence is admitted
    at trial "and before the trial court instructs the jury on the limited and specific
    purpose for which the evidence has been admitted, the court must" instruct the
    jury as follows:
    Normally, such evidence is not permitted under our
    rules of evidence. Our rules specifically exclude
    evidence that a defendant has committed other crimes,
    wrongs or acts when it is offered to show that he/she
    has a disposition or tendency to do wrong and therefore
    must be guilty of the charged offenses. Before you can
    give any weight to this evidence, you must be satisfied
    that the defendant committed the other [crime, wrong,
    or act]. If you are not so satisfied, you may not consider
    it for any purpose.
    [J.M., Jr., 255 N.J. at 159 (alteration in original)
    (quoting Model Jury Charge (Criminal), "Proof of
    Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))"
    (June 4, 2007)).]
    A-3188-18
    19
    Because the admissibility of the Union County sexual assault allegations
    was not raised by defendant, the trial court did not issue the limiting instruction
    required by J.M., Jr. We conclude, however, that in light of the general jury
    instructions with respect to the jury's duty to determine the credibility of
    witnesses, and for the reasons discussed above with respect to why admission of
    the evidence of the Union County sexual assaults did not constitute plain error,
    we conclude that the absence of the J.M., Jr. jury instruction does not warrant
    reversal.
    Defendant also argues that having Anna testify by CCTV was inherently
    prejudicial to him because it created the inference that she would have been
    traumatized if required to be in the same room as defendant. He further contends
    that the manner in which the testimony was delivered bolstered Anna's
    credibility and suggested his guilt. Defendant argues that it was error for the
    trial court not to address these circumstances by instructing the jury not to
    consider the method by which Anna's testimony was presented when
    determining her credibility.
    There is no model jury charge regarding testimony delivered by CCTV.
    In addition, as noted above, defendant did not request instructions regarding the
    method of delivery of Anna's testimony. In support of his argument, defendant
    A-3188-18
    20
    relies on precedents prohibiting a court from requiring a defendant or a witness:
    (1) to appear before the jury in restraints absent compelling reasons, see State v.
    Artwell, 
    177 N.J. 526
    , 537 (2003); State v. Damon, 
    286 N.J. Super. 492
    , 498-99
    (App. Div. 1996); and (2) in prison uniforms, see State v. Kuchera, 
    198 N.J. 482
    , 500-01 (2009).
    We find these precedents unpersuasive. Unlike appearing in prison garb,
    testifying via CCTV is not inherently suggestive of                 the guilt or
    untrustworthiness of the defendant. Jurors were not told the reasons why the
    trial court permitted Anna to testify remotely. Given the pervasiveness of
    remote communications in society generally, the jury may well have assumed
    that the practice is routine. Jurors may also have inferred that it would have
    been traumatic for a ten-year-old to testify before a courtroom full of strangers
    about the acts of sexual abuse she suffered. Nor do we view this arrangement
    as inherently suggestive of Anna's credibility. There is nothing about testifying
    remotely that suggests the victim is more likely to be truthful than if she had
    appeared in person.
    Nor are we persuaded by defendant's argument regarding the jury
    instructions addressing witness credibility. Defendant argues that the trial court
    erred by not giving the jury a Hampton charge. See State v. Hampton, 61 N.J.
    A-3188-18
    21
    250 (1972). That is, when evidence is admitted in the form of a defendant's out-
    of-court statement, the "jury shall be instructed that they should decide whether
    in view of all the . . . circumstances the defendant's confession is true." Id. at
    272. In addition, jurors must be instructed that if they find the defendant's
    statement incredible, "then they must treat it as inadmissible and disregard it for
    purposes of discharging their function as fact finders on the ultimate issue of
    guilt or innocence." Ibid.4
    The State concedes that the court failed to give a Hampton instruction. It
    notes, however, that defendant did not request the instruction.          We have
    previously found no plain error existed in the absence of a Hampton charge
    where the trial court "clearly and repeatedly instructed the jury that it was to
    consider the credibility of all of the testimony which included the testimony as
    to defendant's statement . . . ." State v. Setzer, 
    268 N.J. Super. 553
    , 565 (App.
    Div. 1993). The court gave a similar charge here.
    In addition, we have held that where a defendant has given two conflicting
    statements, a Hampton charge is not necessary. State v. Jordon, 
    285 N.J. Super. 589
    , 596-98 (App. Div. 1995). In Jordan, the defendant did not deny that he
    killed the victim. 
    Id. at 595
    . His proffered defense was that the shooting was
    4
    The holding in Hampton was codified in N.J.R.E. 104(c)(2).
    A-3188-18
    22
    the accidental result of a struggle. That assertion was clearly set forth in a
    recorded statement. 
    Ibid.
     His prior oral statement, however, indicated that he
    intentionally fired at the victim. Both statements were submitted to the jury.
    
    Ibid.
     We held that a Hampton charge was not necessary because "[t]he jury had
    to know and understand that they would have to decide which of these versions
    was credible." 
    Ibid.
    Here, the jury was presented with defendant's recorded out-of-court
    confession and his trial testimony denying the sexual assaults and purporting to
    explain the admissions as falsely given to secure financial assistance for his
    family. The jury, having been instructed generally on its obligation to make
    credibility determinations, clearly knew and understood that they would have to
    decide which of defendant's version of events was credible. It was presented
    with the stark choice of deciding whether defendant truthfully confessed to
    sexually abusing Anna or falsely implicated himself in the hope of assisting his
    family financially. In these circumstances, we conclude that the absence of a
    Hampton charge did not constitute plain error.
    We reach a similar conclusion with respect to defendant's arguments
    regarding an absence of instruction addressing the tender years exception to the
    hearsay rule. There are no model instructions with respect to the exception. In
    A-3188-18
    23
    addition, defendant did not ask for instructions specifically addressing Anna's
    statement to the detective. Before us, defendant argues that it was plain error
    for the court not to instruct the jury to consider Anna's age, demeanor,
    background, and relationship to the detective and defendant, as well as the
    voluntariness of her accusations, when assessing the credibility of her out-of-
    court statement. We find no support for defendant's argument in relevant legal
    precedents and conclude that the general jury instructions on credibility
    sufficiently apprised the jury of its obligation to determine whether Anna's
    allegations of sexual abuse were credible.
    Finally, we disagree with defendant's argument that the errors he raised,
    if insufficient individually to invalidate his conviction, had a cumulative effect
    warranting reversal. Our careful review of the record reveals that defendant was
    afforded a fair trial. See Wakefield, 
    190 N.J. at 537
     (holding that "a defendant
    is entitled to a fair trial but not a perfect one.") (quoting State v. R.B., 
    183 N.J. 308
    , 333-34 (2005)). He was unhindered in his presentation to the jury of his
    recantation of his confession and denial of sexually abusing Anna. He also had
    an opportunity to challenge the credibility of Anna's out-of-court statement and
    trial testimony. The jury was adequately instructed with respect to its obligation
    A-3188-18
    24
    to determine whether the State proved beyond a reasonable doubt that Anna's
    allegations were true.
    IV.
    We review defendant's sentence for abuse of discretion. State v. Pierce,
    
    188 N.J. 155
    , 166 (2006). We must affirm a sentence "unless (1) the sentencing
    guidelines were violated; (2) the aggravating and mitigating factors found by the
    sentencing court were not based upon competent and credible evidence in the
    record; or (3) 'the application of the guidelines to the facts of [the] case makes
    the sentence clearly unreasonable so as to shock the judicial conscience.'" State
    v. Fuentes, 
    217 N.J. 57
    , 70 (2014) (alteration in original) (quoting State v. Roth,
    
    95 N.J. 334
    , 364-65 (1984)).
    The sentencing court must examine the aggravating and mitigating factors
    enumerated in N.J.S.A. 2C:44-1(a) and (b). Id. at 72. Each factor found by the
    court must be relevant and supported by "competent, reasonably credible
    evidence." Ibid. (quoting Roth, 
    95 N.J. at 363
    ). The court then must conduct a
    qualitative balancing of the factors to determine the appropriate sentence. Id. at
    72-73. One "reasonable" approach is for the court to begin its analysis in the
    middle range for the offense at issue and determine whether the factors ju stify
    A-3188-18
    25
    departure above or below the middle range. Id. at 73 (quoting State v. Natale,
    
    184 N.J. 458
    , 488 (2005)).
    "Elements of a crime, including those that establish its grade, may not be
    used as aggravating factors for sentencing of that particular crime." State v.
    Lawless, 
    214 N.J. 594
    , 608 (2013). To use those elements in formulating the
    aggravating factors would result in impermissible double-counting. State v.
    Kromphold, 
    162 N.J. 345
    , 353 (2000) (citing State v. Yarbough, 
    100 N.J. 627
    ,
    633 (1985)); see also Fuentes, 217 N.J. at 74-75 (holding that sentencing courts
    "must scrupulously avoid 'double-counting' facts that establish the elements of
    the relevant offense.").
    "A court, however, does not engage in double-counting when it considers
    facts showing defendant did more than the minimum the State is required to
    prove to establish the elements of an offense." State v. A.T.C., 
    454 N.J. Super. 235
    , 254-55 (App. Div. 2018) (citing Fuentes, 217 N.J. at 75).
    In [Yarbough], we recognized that facts that established
    elements of a crime for which a defendant is being
    sentenced should not be considered as aggravating
    circumstances in determining that sentence. We
    reasoned that the Legislature had already considered
    the elements of an offense in the gradation of a crime.
    If we held otherwise, every offense arguably would
    implicate aggravating factors merely by its
    commission, thereby eroding the basis for the gradation
    of offenses and the distinction between elements and
    A-3188-18
    26
    aggravating circumstances. In the same manner,
    double-counting of elements of the offenses as
    aggravating factors would be likely to interfere with the
    Code's dedication to uniformity in sentencing.
    [Kromphold, 
    162 N.J. at 353
     (internal citation
    omitted).]
    Defendant argues that he is entitled to a new sentencing hearing because
    the trial court erred when it found aggravating factor two based on Anna's age,
    given that the victim's age is an element of both crimes of which defendant was
    convicted. In addition, defendant argues that the trial court erred when it relied
    on the relationship between defendant and Anna in support of aggravating factor
    two because defendant's legal duty to Anna is an element of the endangering
    offense. We are not persuaded by defendant's arguments.
    The second-degree sexual assault of which defendant was convicted is
    defined as follows: "[a]n actor is guilty of sexual assault if the actor commits an
    act of sexual contact with a victim who is less than 13 years old and the actor is
    at least four years older than the victim." N.J.S.A. 2C:14-2(b). In addition,
    second-degree endangering the welfare of a child is defined as follows:
    Any person having a legal duty for the care of a child
    or who has assumed responsibility for the care of a
    child who engages in sexual conduct which would
    impair or debauch the morals of the child is guilty of a
    crime of the second degree.
    A-3188-18
    27
    [N.J.S.A. 2C:24-4(a)(1).]
    "Child" is defined for purposes of the statute as "any person under 18 years of
    age." N.J.S.A. 2C:24-4(b)(1).
    We agree that the victim's age is an element of both crimes of which
    defendant was convicted. However, the trial court's findings with respect to
    aggravating factor two focused on Anna's familial relationship to defendant and
    the trust and love that existed between the two, the breach of which made Anna
    particularly vulnerable. The familial relationship between Anna and defendant
    is not an element of N.J.S.A. 2C:14-2(b). It is, instead, a fact beyond the
    minimum the State needed to prove the offense. A.T.C., 454 N.J. Super. at 254-
    55. In addition, aggravating factor two "focuses on the setting o f the offense
    itself with particular attention to any factors that rendered the victim vulnerable
    or incapable of resistance at the time of the crime." Lawless, 214 N.J. at 611.
    The record reflects that Anna expressed a reluctance to testify at trial because
    she did not want defendant to be imprisoned, supporting the trial court's finding
    that she was vulnerable to defendant's sexual abuse because of the emotional
    bond between them.
    In addition, although defendant's legal duty to care for Anna is an element
    of N.J.S.A. 2C:24-4(a)(1), the trust established between Anna and defendant, of
    A-3188-18
    28
    which defendant took advantage, is an additional aggravating circumstance
    warranting application of aggravating factor two. The legal duty of a stepfather
    alone is sufficient to prove the offense. The emotional bond between defendant
    and Anna, which facilitated the commission of his crimes, is a sufficient basis
    to support aggravating factor two.
    Finally, the sentence imposed on defendant is within the statutory range
    for his offenses and does not shock the conscience of this court. Defendant
    repeatedly sexually abused a nine-year-old girl and violated the bond that
    existed with his stepdaughter. We see no reason to disturb the sentence imposed.
    Affirmed.
    A-3188-18
    29