Opinion
A-3501-19
08-01-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FUQUAN HOBGEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin Finckenauer, Assistant Deputy Public Defender, of counsel and on the briefs). Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
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.
Submitted April 25, 2023
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 17-10-2900.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin Finckenauer, Assistant Deputy Public Defender, of counsel and on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sumners and Susswein.
PER CURIAM.
Defendant Fuquan Hobgen appeals from his jury trial convictions for multiple sexual offenses perpetrated against a child. He contends he was deprived of a fair trial, claiming: (1) the prosecutor committed misconduct by mischaracterizing the strength of the State's DNA evidence; (2) the testimony of State witnesses included inadmissible hearsay statements; (3) the State improperly admitted defendant's birth certificate; and (4) the trial court erred in not sanitizing defendant's prior convictions. He also argues the trial court erred in not merging the sexual assault and sexual assault of a minor convictions and by imposing a discretionary persistent offender extended term of imprisonment.
After carefully reviewing the record in light of the governing legal principles, we affirm defendant's convictions. We also affirm the sentence that was imposed, with one caveat. We conclude the convictions for sexual assault and sexual assault of a minor-which were committed at the same time against the same victim-should have been merged for sentencing purposes. We therefore remand for the limited purpose of correcting the judgment of conviction to reflect that merger.
I.
In October 2017, defendant was charged by indictment with second-degree sexual assault by use of physical force (sexual assault by force), N.J.S.A. 2C:14-2(c)(1); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and second-degree sexual assault for an act of sexual penetration against a victim at least thirteen but younger than sixteen (sexual assault of a minor), N.J.S.A. 2C:14-2(c)(4).
Defendant was tried before a jury between October and November 2019. The jury found defendant guilty on all counts. At sentencing, the trial court merged the sexual assault by force, endangering, and criminal sexual contact convictions and imposed an extended term of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with Megan's Law requirements, N.J.S.A. 2C:7-2, and parole supervision for life. The court imposed a concurrent eight-year prison term on the sexual assault of a minor charge. Defendant was also ordered to pay restitution, fines, and fees.
We discern the following facts from the trial record. The crimes occurred on June 3, 2017. The victim M.G. was thirteen years old. Defendant was thirty-one years old and had been living with M.G.'s family for a few weeks. Defendant had a familial connection to M.G.
We use initials to protect the identities of child victims of sexual assault in accordance with Rule 1:38-3(c)(9) and (12).
M.G. testified that at around 11:00 p.m., defendant called and asked if she wanted to take a ride with him. M.G. said yes and told her mother she was leaving with defendant in his car. While driving, defendant asked M.G. if she could keep a secret. She responded "yes." Then defendant asked her, "[s]o, if I ask you this question, is you gonna tell anybody?" M.G. responded, "[n]o, I don't run my mouth."
Defendant parked his car at Von Nieda Park near the back of the parking lot, which was unlit. No one else was there, and there were no other cars around. Defendant turned off his car and told M.G., who had been sitting in the front passenger seat, to "get in the back." When she refused, defendant pulled her seat back and pushed her to the back seat of the car. M.G. testified that defendant got out of the car, entered the back, and proceeded to pull down her pants and penetrate her vagina with his penis. Defendant also put his hands on her chest and kissed her lips. Defendant held her down despite her attempts to push him off. Defendant relented in his assault momentarily when M.G. said she had to use the bathroom but requested that M.G. let him ejaculate in her first. At that point, M.G. was able to pull her pants up and got back into the front seat.
When defendant tried to start the car to leave, the car would not start. Camden County Police Department Officer Michael Murtha noticed a vehicle parked in the back corner of Von Nieda Park. He and another officer approached the car and observed defendant sitting in the driver seat and M.G. in the front passenger seat.
Officer Murtha asked M.G. and defendant what they were doing and whether M.G.'s mother knew they were there. M.G. testified that defendant told the officers that they were "sitting here talking" and that he picked her up at the basketball courts at the park and that his car died in the parking lot. M.G. testified she was scared to tell the officers what actually happened because defendant was present.
M.G. revealed to Officer Murtha she was thirteen years old. Given her age, Officer Murtha contacted M.G.'s mother to determine whether she was supposed to be alone with a much older man. M.G.'s mother told Officer Murtha that defendant was like family and that she was aware M.G. was with him. Since there did not seem to be a problem, the officers released them and told them to leave the area.
Since the car still would not start, defendant called for a cab. While traveling in the cab, defendant told M.G., "[d]on't tell nobody." When they arrived back at M.G.'s home, M.G. found her mother and insisted they go outside to talk. Once outside, M.G. began crying and told her mother that defendant sexually assaulted her. M.G.'s mother told her to go behind the house, then ran to the front and started hitting defendant. M.G.'s mother then called the police, but by the time they arrived, defendant was gone.
M.G. testified about reporting the assault to the responding police officers, then going to the hospital where she was examined and swabbed in the mouth, vagina and fingernails. M.G. was examined by Chrisha Austin, a registered nurse certified as a sexual assault nurse examiner (SANE nurse). Without divulging the specifics of what M.G. reported to her, Nurse Austin testified that M.G. reported she had been sexually assaulted. Nurse Austin noted M.G. had abrasions on her chest and complained of soreness on the back of her head. She swabbed M.G.'s mouth, fingernails, and vagina and collected her shorts and underwear for forensic testing.
M.G. also met with Dr. Monique Higginbotham, a child abuse pediatrician and an Associate Professor of Pediatrics. Dr. Higginbotham was accepted without objection as an expert witness in general pediatrics and child abuse pediatrics. She testified that her evaluation focuses on what type of sexual contact occurred to determine whether any testing needs to be done. She testified the ultimate purpose of her examination was for "medical diagnosis and treatment of the child."
Dr. Higginbotham began her examination by explaining her role, that she is a doctor and that she sees patients when there is a concern they experienced something that was uncomfortable and unsafe. During the course of the examination, M.G. related the following information to Dr. Higginbotham:
She described being in a vehicle in the back seat of a car when the individual pulled her pants down and pulled his pants down, got on her and she said that's when it happened. And specifically[,] she said that he put his private part inside her vagina. I asked some follow up questions. I asked specifically if he did anything to her mouth. She said he kissed her on the mouth and put his tongue in her mouth. I asked her to tell me if he did something to her breasts and she said he used his hands and she held her hands up in front of her with palms facing out to show how he used his hands on her breasts. And I asked some follow up questions about what happened to her vagina. And she, as I stated, she said he put his private part inside of it. I asked if he put anything else inside of her vagina, including his fingers and she said no. And I asked her to tell me what he did to her butt and she said he did not do anything to her butt.
Based on M.G.'s answers, Dr. Higginbotham conducted a physical examination around M.G.'s vagina and found everything appeared normal. She testified that it is "very rare for a child or teenager to have any physical finding after this type of sexual contact occurs." Dr. Higginbotham recommended M.G. receive trauma focused counseling.
The State also presented scientific evidence at trial linking defendant to DNA found on the underwear M.G. wore that night. Forensic scientist Rupal Frank-Slotwinski from the New Jersey State Police Office of Forensic Science testified that serology tests were performed on the sexual assault kit swabs, M.G.'s shorts, and her underwear. While no sperm was found on the shorts or underwear, Frank-Slotwinski discovered a stain on the underwear was P30 positive, which is a substance found in high concentration in semen. That area of the underwear was then packaged, sealed, and placed into a DNA packet for further testing.
Forensic DNA analyst Riza Ysla of the New Jersey State Police Office of Forensic Science tested the underwear sample and determined there were at least four contributors, both male and female. She performed Y-STR testing on the sample to look specifically for the Y-chromosome, which is uniquely male. She testified that there was a "predominant major Y-STR DNA profile" and another "very minor Y profile" found.
Once defendant's DNA was retrieved from a buccal swab, Ysla confirmed that the major Y-STR profile found on M.G.'s underwear matched defendant's DNA. She explained that the Y-STR DNA match is limited, however, in that male relatives of defendant cannot be excluded as possible contributors. Additionally, Ysla testified that this match is expected to occur no more frequently than one in 728 of the African American population, one in 929 of the Caucasian population, one in 2,140 of the Hispanic population, and one in 921 of the Native American population.
At the close of the State's case, the court admitted defendant's birth certificate showing a birthdate of December 27, 1985.
Defendant raises the following contentions for our consideration:
POINT I
THE PROSECUTOR COMMITTED REVERSIBLE ERROR IN REPEATEDLY MISCHARACTERIZING THE Y-STR EVIDENCE AS DEFINITIVELY PROVING THAT [DEFENDANT]'S DNA WAS ON M.G.'S UNDERWEAR.
POINT II
THE TESTIMONY OF SEVERAL STATE WITNESSES WAS REPLETE WITH REFERENCES TO AND DIRECT QUOTATIONS OF INADMISSIBLE HEARSAY STATEMENTS MADE BY THE VICTIM, M.G., WHICH THE STATE IMPROPERLY USED TO BOSLTER HER CREDIBILITY AND DENIGRATE [DEFENDANT].
A. Nurse Austin Related Numerous Damaging, Inadmissible Hearsay Statements Made to Her by M.G.
B. Dr. Higginbotham Similarly Relayed Numerous, Inadmissible Hearsay Statements that Severely Tainted the Proceedings.
C. The Collective Statements Caused Serious Harm and Warrant Reversal of [Defendant]'s Convictions and a Remand for a New Trial.
POINT III
THE STATE IMPROPERLY ADMITTED [DEFENDANT]'S BIRTH CERTIFICATE AS SUBSTANTIVE EVIDENCE BY PERSONALLY PRESENTING IT TO THE JURY, WITHOUT THE USE OF LIVE WITNESS TESTIMONY.
POINT IV
THE TRIAL COURT REVERSIBLY ERRED IN REFUSING TO SANITIZE [DEFENDANT]'S PRIOR CONVICTIONS FOR POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL ZONE, RESULTING IN A DECISION NOT TO TESTIFY.
POINT V THE CUMULATIVE IMPACT OF THE TRIAL ERRORS DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL.
POINT VI
A REMAND FOR RESENTENCING IS REQUIRED BECAUASE THE TRIAL COURT FAILED TO MERGE COUNT FOUR WITH COUNT ONE AND ERRED IN IMPOSING A DISCRETIONARY EXTENDED TERM.
A. The Trial Court Erred in Failing to Merge Count Four into Count One.
B. The Trial Court Erred in Imposing an Extended Term in the First-Degree Range for [Defendant]'s Second-Degree Offense, Requiring a Resentencing.
II.
We first address defendant's contention that the prosecutor committed misconduct by mischaracterizing the Y-STR evidence as definitively proving that defendant's DNA was on M.G.'s underwear. The challenged remarks were not objected to at trial.
We begin our analysis by acknowledging the governing legal principles relating to prosecutorial misconduct. "[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries" and are "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. McNeil-Thomas, 238 N.J. 256, 275 (2019) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). Remarks should stay within the bounds of the evidence and "legitimate inferences therefrom." Ibid. (quoting State v. R.B., 183 N.J. 308, 330 (2005)); see also State v. Jackson, 211 N.J. 394, 408 (2012) ("A finding of prosecutorial misconduct prejudicing a defendant's right to a fair trial may be based upon references to matters extraneous to the evidence."). When remarks "stray over the line of permissible commentary," courts must "weigh 'the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial.'" McNeil-Thomas, 238 N.J. at 275 (quoting State v. Wakefield, 190 N.J. 397, 437 (2007)).
Furthermore, "[i]n deciding whether prosecutorial conduct deprived a defendant of a fair trial, 'an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" State v. Williams, 244 N.J. 592, 608 (2021) (quoting Frost, 158 N.J. at 83). Reviewing courts should consider the following factors: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (quoting Frost, 158 N.J. at 83). "In general, when counsel does not make a timely objection at trial, it is a sign 'that defense counsel did not believe the remarks were prejudicial' when they were made." State v. Pressley, 232 N.J. 587, 594 (2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)). Because defendant did not object at trial, our review is subject to the plain error standard contained in Rule 2:10-2, which instructs that error is to be disregarded on appeal unless "clearly capable of producing an unjust result."
The prosecutor's comments on the evidence in his summation now challenged for the first time on appeal must be reviewed in the context of the testimony elicited from Ysla, the State's DNA expert. She testified unequivocally that defendant was a "match" to the Y-STR DNA profile as shown in the following question and answer:
[PROSECUTOR]: And you ultimately concluded that the DNA profile of [defendant] matches the DNA in the underwear sample, correct?
[YSLA]: Yes, I was able to conclude that he matches to the major Y-STR DNA profile in [the underwear specimen].
Evidence of the match was further elicited in the following exchange:
[PROSECUTOR]: Again, based on the Y-STR testing, your conclusion is . . . that the major profile that you found in that underwear sample belonged to [defendant]. Is that right?
[YSLA]: Yes. He matches to the major Y-STR DNA profile found on [the underwear specimen].
There was no objection to these questions or answers. Those answers, therefore, constitute evidence upon which the prosecutor could comment on in his summation. The record clearly shows, moreover, that Ysla did not overstate the results of the Y-STR DNA profile. Her conclusion, stated many times over, was that Y-STR DNA profile obtained from the evidence sample matched the Y-STR profile obtained from defendant.
We note that on cross-examination, defense counsel emphasized the limitations of Ysla's conclusions, eliciting testimony regarding the statistical frequency of Y-STR DNA in the general population and noting that members of defendant's paternal line could not be excluded. Defense counsel also clarified on recross-examination what Ysla meant when she used the word "match":
[DEFENSE COUNSEL]: Ms. Ysla, you are a scientist and words matter. [Defendant] matching the specimen is not the same as [him] being the sole contributor of that specimen. Would that be a fair statement to say?
[YSLA]: In this particular item, it reacted as a mixture. So . . . I cannot make a conclusion that there's only one contributor. He does match to the major or more predominate profile found on that item. But, yes, I can't say that he is the sole contributor of the Y-STR DNA.
We next turn to the prosecutor's summation to determine whether his comments exceeded or mischaracterized Ysla's testimony. The prosecutor said that he "would talk a little bit about the DNA evidence and the fact that [defendant]'s DNA was in the underwear that the victim was wearing that night." During his discussion of the DNA evidence, the prosecutor stated:
Now the DNA evidence, I'm not going to harp on anything about the DNA. Okay? But the testimony you heard was that the major DNA profile found in the underwear that [M.G.] was wearing the night of this incident matched the defendant .... You also heard,
at least as far as the victim remembers, that the underwear she was wearing was clean that night.
How did his DNA end up in her underwear -- her clean underwear? Now, the forensic scientist who testified couldn't exclude him as being the source of that, because she's looking at the evidence before her, which is two samples. You, however, are looking at the big picture. You have all of the evidence to look at.
She could not take into account the fact that these individuals, [M.G.] and the defendant, were found in this vehicle, where [M.G.] reported this happened. You can. This is not a football stadium full of people. This is two individuals in a car. It's indisputable.
Another thing that the DNA witness, Ms. [Ysla], testified to was that the quality of the sample determines the strength of the results. And in this case, they weren't able to do the full genetic work up of the sample. That they resorted to a kind of secondary form of testing, where they're only testing one-half of -- of the chromosomal make-up that each and every one of us have. The Y chromosome. The male chromosome.
The other thing that counsel made reference to, there was nothing found in the fingernails. Well, you know what? There was no testimony that . . . she was scratching him or anything like that . . . when the struggle was happening. So, again, it corroborates . . . her story.
In addition, the serologist, . . . [Frank-Slotwinski,] who did the initial testing and the presumptive test on all . . . the items[,] . . . specifically didn't test for trace evidence like hair or fibers, so that's why you didn't hear any sort of evidence on . . . that subject.
You know what else about the DNA that . . . corroborates [M.G.]'s testimony, is that no sperm was found on the buccal swabs of her genitals or in the underwear. Well, she told you that he did not finish. He asked if he could finish inside of her, but that did not happen.
We are satisfied the prosecutor's summation, viewed as a whole, did not mischaracterize the evidence elicited at trial or contradict the limitations of the scientific evidence that Ysla acknowledged on cross-examination. The prosecutor did not commit misconduct by not explicitly reciting those limitations. A prosecutor is not obliged on summation to make the defense case or comment on testimony favorable to the defense. Because the prosecutor's statements regarding the scientific evidence were not objected to during the trial, we decline to find them to be improper, much less unfairly prejudicial. See Pressley, 232 N.J. at 594. Nor has defendant shown that the prosecutor's comments regarding the scientific evidence were "clearly capable of producing an unjust result," R. 2:10-2, especially considering the overwhelming evidence that defendant sexually assaulted a thirteen-year-old victim, cf. State v. Derry, 250 N.J 611, 634 (2022) (noting "overwhelming evidence" can render errors "harmless").
III.
Defendant next argues that the testimony of the SANE nurse and Dr. Higginbotham included impermissible hearsay statements attributed to the victim that were used by the State to bolster M.G.'s credibility. The record shows the limited testimony by the SANE nurse was properly within the scope of admissible evidence. Moreover, the victim's statements to Dr. Higginbotham were made in good faith for purposes of medical diagnosis or treatment and thus admissible testimony under N.J.R.E. 803(c)(4).
Once again, we begin our analysis by acknowledging the governing legal principles. Hearsay is defined as a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." N.J.R.E. 801(c). Unless it falls within an applicable exception, hearsay is not admissible evidence. N.J.R.E. 802.
"[I]t has long been the rule in New Jersey that the declarations of a patient as to his [or her] condition, symptoms, and feelings made to his [or her] physician for the purpose of diagnosis or treatment are admissible in evidence as an exception to the hearsay rule." State v. Gonzales, 249 N.J. 612, 636 (2022) (quoting Cestero v. Ferrara, 57 N.J. 497, 501 (1971)). This exception is "based on the assumption that the declarant is more interested in obtaining a diagnosis and treatment culminating in a medical recovery than he [or she] is in obtaining a favorable medical opinion culminating in a legal recovery." Biunno, Weissbard &Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(4) (2022).
Under N.J.R.E. 803(c)(4), a hearsay statement is admissible provided it "is made in good faith for purposes of, and is reasonably pertinent to, medical diagnosis or treatment" and "describes medical history; past or present symptoms or sensations; their inception; or their general cause." "[T]o be admissible[,] the patient must have believed that the statement would enable the doctor to treat," because "[r]eliability is based on the declarant's belief that a doctor will properly treat him [or her] if the doctor is told the truth concerning the ailment." State in the Int. of C.A., 201 N.J.Super. 28, 33-34 (App. Div. 1985). In contrast, a statement by a someone who "is unaware that his or her statements will enable a physician to make a diagnosis and administer treatment" does not possess the same trustworthiness to qualify under this exception. R.S. v. Knighton, 125 N.J. 79, 87-88 (1991). Consequently, hearsay obtained during evidence gathering and medical consultations administered for the purpose of preparing for litigation is not admissible. See C.A., 201 N.J.Super. at 33.
A.
We first consider the SANE nurse's testimony. During the trial, the court correctly held that Nurse Austin's examination was not covered by the medical diagnosis and treatment exception because the purpose of her examination was to gather evidence in preparation for a criminal proceeding. The court ruled that the prosecutor could ask Nurse Austin "questions about the examination and the examination she conducted, but [he] cannot have her . . . repeat what the alleged victim said as to what happened."
On appeal, defendant asserts that Nurse Austin violated that restriction when she testified that M.G. reported to her that she had been sexually assaulted. Nurse Austin also testified that M.G. "complained of soreness" and that "she said she hit the back of her head at some point where . . . she was tender to touch." Defense did not object to either of those hearsay statements.
During the prosecutor's redirect examination, the court allowed the following questions and answers over defense counsel's objection:
[PROSECUTOR]: Did you ask [M.G.] if she was physically restrained in any way?
[NURSE AUSTIN]: Yes.
[PROSECUTOR]: And did she respond?
[NURSE AUSTIN]: Yes.
[PROSECUTOR]: Do you recall the response?
[NURSE AUSTIN]: By hands.
[PROSECUTOR]: Was it an affirmative response?
[NURSE AUSTIN]: Yes.
We conclude it was not error, much less plain error, to allow Nurse Austin to testify that M.G. reported she had been sexually assaulted. That fact was the reason for Nurse Austin's involvement in the case. Furthermore, the fact that M.G. reported a sexual assault to the SANE nurse could be gleaned through the testimony defense counsel elicited. Counsel specifically asked Nurse Austin, "the only cases that you are doing examinations for in this capacity [as a SANE nurse] would be for sexual assault, correct?"
Nor was it plain error for Nurse Austin to testify regarding M.G.'s complaints of soreness, considering that complaint was an integral part of the physical examination. Nurse Austin only relayed M.G.'s complaints of pain that went directly to the areas of the body that she examined. Moreover, "the general principle is that hearsay, which is subject to a well-founded objection, is generally evidential if no objection is made." State v. Canfield, 470 N.J.Super. 234, 331 (App. Div. 2022), affd as modified, 252 N.J. 497 (2023) (citing State v. Ingenito, 87 N.J. 204, 224 n. 1 (1981) (Schreiber, J., concurring)). But even assuming these comments were inadmissible hearsay, they were not capable of producing an unjust result. We reiterate that in the absence of a timely objection, we presume defense counsel did not believe the remarks were prejudicial in the atmosphere of the trial. See Pressley, 232 N.J. at 594 (quoting Echols, 199 N.J. at 360).
As to the exchange during the prosecutor's redirect examination, defense counsel made a timely objection, which was overruled. The trial court did not rule that the testimony was admissible hearsay, but rather allowed what otherwise would be inadmissible testimony, reasoning that "the door's been opened, because the subject matter's been explored thoroughly by the defendant through cross[-]examination." Specifically, defense counsel had asked the following questions:
[DEFENSE COUNSEL]: Did you note any wounds to [M.G.]'s forearms?
[NURSE AUSTIN]: No.
[DEFENSE COUNSEL]: Did you note any wounds to [M.G.]'s -- like any of her outer extremities?
[NURSE AUSTIN]: No.
[DEFENSE COUNSEL]: Now, in your report, you had the opportunity to document your assessments, is that correct?
[NURSE AUSTIN]: Yes. ...
[DEFENSE COUNSEL]: And, in your analysis, did you make any notes regarding your examination as to what areas involved restraint?
[NURSE AUSTIN]: Yes.
[DEFENSE COUNSEL]: Okay. Can you tell us what notes you made?
[NURSE AUSTIN]: That he had res -
[DEFENSE COUNSEL]: No, no, no.
[NURSE AUSTIN]: I'm sorry.
[DEFENSE COUNSEL]: I'm talking about -
[NURSE AUSTIN]: She was restrained by somebody else's hands. At the top [of the report], is that what you're referring to?
[DEFENSE COUNSEL]: Yes. So, basically, the notes that you made regarding your examination was that hands were involved and the use of restraints, is that correct?
[NURSE AUSTIN]: Yes.
"The 'opening the door' doctrine is 'a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection.'" State v. Prall, 231 N.J. 567, 582 (2018) (quoting State v. James, 144 N.J. 538, 554 (1996)). "[I]t permits 'a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence.'" Id. at 582-83 (quoting James, 144 N.J. at 554). "The 'doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context.'" Id. at 583 (quoting James, 144 N.J. at 554). "The doctrine is limited, however, by weighing the probative value against the prejudicial nature of the evidence under N.J.R.E. 403." Ibid. (citing James, 144 N.J. at 554).
In this case, admissible evidence-defense counsel's questions regarding the SANE nurse's report-prompted redirect examination involving otherwise inadmissible hearsay. The prosecutor asked very limited questions to establish that M.G. reported that she was restrained. While this appears to be a permissible use of the otherwise impermissible hearsay-as found by the trial court-even were we to assume for the sake of argument that the court erred in applying the "opening-the-door" doctrine, such error would not rise to the level of harmful error. The questions regarding restraint posed by the prosecutor on redirect examination are insufficient "to raise a reasonable doubt as to whether [they] led the jury to a result it otherwise might not have reached," State v. Jackson, 243 N.J. 52, 73 (2020) (quoting Prall, 231 N.J. at 581), especially considering the questions posed by the prosecutor did not elicit more than had already been revealed by the SANE nurse during defense counsel's crossexamination.
B.
We turn next to Dr. Higginbotham's testimony regarding what M.G. told her. At the start of Dr. Higginbotham's testimony, the trial court interjected and held a sidebar conference with counsel to determine the bounds of admissible hearsay statements under N.J.R.E. 803(c)(4). The trial court stated that while M.G.'s statements to Dr. Higginbotham were hearsay, "it appear[ed] on the face of it, [the prosecution has] laid the foundation for the hearsay exception that deals with information provided for purpose of medical diagnosis or treatment." Defense counsel did not raise an objection during the sidebar conference or during Dr. Higginbotham's testimony as to the foundation or application of the hearsay exception. Defendant now argues the State failed to establish that M.G. knew the purpose of the examination was for treatment, rather than for evidence gathering. The record belies that argument. Dr. Higginbotham testified that she began her examination by explaining her role to M.G.-that she is a doctor who examines children and adolescents whenever there is a concern they experienced something that was uncomfortable or unsafe.
M.G.'s statements related to "past or present symptoms or sensations; their inception; or their general cause." N.J.R.E. 803(c)(4)(B). Dr. Higginbotham explained that to determine whether testing is necessary, she seeks information concerning what happened to her patients' bodies and what type of sexual contact occurred. The ultimate purpose, Dr. Higginbotham testified, is for "medical diagnosis and treatment of the child." We add that Dr. Higginbotham created a trauma plan for M.G. We thus conclude there was sufficient credible evidence to support the trial court's determination that the purpose of the visit was for treatment and not evidence collection. We find no error in the trial court's evidentiary ruling. See State v. Garcia, 245 N.J. 412, 430 (2021) ("We will not substitute our judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes 'a clear error in judgment.'" (quoting State v. Medina, 242 N.J. 397, 412 (2020))).
IV.
We turn next to defendant's contention that the trial court erred in allowing the State to admit defendant's birth certificate without live testimony. New Jersey public documents "purporting to bear a signature affixed in an official capacity by an officer or employee of the State of New Jersey or of a political subdivision, department, office or agency within it" are self-authenticating and "require no extrinsic evidence of authenticity in order to be admitted." N.J.R.E. 902. Moreover, the proponent of a public record may use a copy to prove its contents if "(a) the record or writing is otherwise admissible; (b) and the copy is certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005. Moreover, records of vital statistics, such as birth certificates, are admissible hearsay evidence, so long as "the report thereof was made to a public officer pursuant to the requirements of law." N.J.R.E. 803(c)(9).
In this instance, the State presented a certified copy of defendant's birth certificate with a raised seal, signed by the City of Camden Registrar. The trial court determined defendant's birth certificate met all the requirements of a self- authenticating document containing admissible hearsay, noting it was signed by an official from the Office of Vital Statistics and Registry. The court ruled that defendant's birth certificate is a record of vital statistics falling under hearsay exception N.J.R.E. 803(c)(9) and self-authenticating pursuant to N.J.R.E. 1005 and 902(a).
Defendant has presented no legal authority to establish live witness testimony is required to admit a self-authenticating document. The plain text of N.J.R.E. 1005 provides that a proponent must produce either a certified copy in accordance with N.J.R.E. 902, or a live witness. We add that defendant makes no claim that the information on the birth certificate was inaccurate.
V.
Defendant next argues that the trial court erred in refusing to sanitize defendant's prior convictions for possession with intent to distribute within 1,000 feet of a school zone, which defendant claims caused him not to testify. "Our rules of evidence allow a witness's prior convictions to be admitted for impeachment purposes despite the obvious prejudice that flows from such evidence, particularly for a criminal defendant." State v. Hamilton, 193 N.J. 255, 256 (2008); see also N.J.R.E. 609. "Evidence Rule 609 provides that '[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes.'" Ibid. (emphasis omitted) (quoting N.J.R.E. 609); see also State v. Sands, 76 N.J. 127, 144-45 (1978) (allowing court to consider age and nature of prior crime when weighing relevance of conviction against prejudice to defendant in determining whether to admit prior conviction).
In State v. Brunson, our Supreme Court held that when the State introduces a prior conviction that is the same as or similar to the offense charged, the court should prevent the jury from hearing the specifics of the prior offense. 132 N.J. 377, 391 (1993). "Such convictions are required to be 'sanitized,' thereby allowing the jury to learn only limited information about the conviction, including the date, degree, and number of offenses of a defendant." Hamilton, 193 N.J. at 257 (citing Brunson, 132 N.J. at 391-92). "Sanitization protects a defendant from the risk that a jury will be influenced by knowledge of the prior conviction for the same or a similar offense when determining whether to convict the defendant on the new charge." Ibid.
The Court in Hamilton further held that beyond convictions for the same or similar offense as the one being tried, trial courts retain "discretion to consider sanitization of prior conviction evidence in any other circumstances that posed a risk of undue prejudice to a defendant." Id. at 269. "Even when a prior conviction is admissible, the trial court must determine whether the jury should be shielded nevertheless from the prior conviction's details." Id. at 257.
In the matter before us, the trial court held that sanitization of defendant's prior convictions for possession with intent to distribute within 1,000 feet of a school was not appropriate. The court reasoned that the drug charges were dissimilar and "too attenuated" to the sexual assault, criminal sexual contact, and endangering charges defendant was facing.
Defendant argues that because a "school zone" conviction relates to children-given that children go to school-that drug offense is similar to the offense of sexually assaulting a child for purposes of the sanitization doctrine. He argues that without sanitization, he would be prejudicially viewed as "someone who repeatedly preys on children" based on the school zone conviction, notwithstanding that he was never accused of distributing drugs to children. Cf. N.J.S.A. 2C:35-8 (providing enhanced punishment for distributing drugs to persons under age eighteen). We are unpersuaded by defendant's argument and conclude the connection between possessing drugs with intent to distribute while in a school zone is too attenuated from the offense of sexually assaulting a minor as to require sanitization. We further conclude the trial court did not abuse its discretion in deciding not to sanitize defendant's prior dissimilar convictions on the facts of this case. See Garcia, 245 N.J. at 430.
N.J.S.A. 2C:35-7 refers to elementary and secondary schools.
VI.
Defendant argues that even if we find that no individual trial errors warrant reversal, the cumulative effect of the errors denied him due process and a fair trial. As we have explained, defendant has not demonstrated that any prejudicial errors occurred at trial. We likewise conclude the doctrine of cumulative error has no application here.
In reaching this conclusion, we are mindful that "[t]rials, particularly criminal trials, are not tidy things." State v. R.B., 183 N.J. at 333. "[D]evised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness." Id. at 33334. "A defendant is entitled to a fair trial but not a perfect one." Id. at 334 (quoting Lutwak v. United States, 334 U.S. 604, 619 (1953)).
"If a defendant alleges multiple trial errors, the theory of cumulative error will still not apply where no error was prejudicial and the trial was fair." State v. T.J.M., 220 N.J. 220, 238 (2015) (quoting State v. Weaver, 219 N.J. 131, 155 (2014)). Therefore, in the absence of error, much less cumulative error, there is nothing "sufficient to raise a reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Applying these principles, we are unpersuaded that defendant was denied a fair trial, especially considering the strength of the State's proofs.
VII.
Defendant contends that for sentencing purposes, the trial court ought to have merged his conviction with second-degree sexual assault with a thirteen-year-old-victim with his conviction for second-degree sexual assault by use of physical force. Although such merger would not the reduce the aggregate term of imprisonment and parole ineligibility, since the trial court ordered the separate sentences to run concurrently, we agree with defendant's argument.
Our Supreme Court has adopted a flexible standard for merger that "requires us to focus on 'the elements of crime and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" State v. Cole, 120 N.J. 321, 327 (1990) (quoting State v. Miller, 108 N.J. 112, 116-17 (1987)). "Convictions for . . . offenses that merely offer an alternative basis for punishing the same criminal conduct will merge." State v. Brown, 138 N.J. 481, 561 (1994). As the Court explained in State v. Diaz, this flexible approach entails an analysis of the evidence in terms of, among other things,
the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.
[144 N.J. 628, 638 (1996) (quoting State v. Davis, 68 N.J 69, 81 (1975)).]
In this instance, the trial court determined that the offense of sexual assault of a minor "addressed a distinct harm to the victim and society" and thus did not merge with the second-degree sexual assault by physical force. Although we agree with that as a general proposition, we are also influenced by the fact that in this case, both crimes occurred in the course of a single episode; indeed, both crimes were committed by means the same physical act-sexual penetration of the same body part of the same victim. Both offenses are graded as second-degree crimes, and both are subject to NERA. In these circumstances, we conclude the convictions should merge and therefore remand for the limited purpose of amending the sentence and judgment of conviction accordingly.
VIII.
Finally, we address defendant's contention the trial court erred in imposing a discretionary extended term as a persistent offender. N.J.S.A. 2C:44-3 provides that upon application of a prosecution attorney, a court may sentence a person who has been convicted of a first-, second-, or third-degree crime to an extended term of imprisonment if one of the statutory grounds are satisfied. N.J.S.A. 2C:44-3(a) provides one such ground:
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is [twenty-one] years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least [eighteen] years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within [ten] years of the date of the crime for which the defendant is being sentenced.
When evaluating whether a defendant is a "persistent offender," courts must
examine the defendant's prior record and his or her age at the time of any prior convictions, facts that the State asserts are the "who, what, when and where" of those prior convictions and that do not entail any additional findings related to the offense for which the defendant is being sentenced.
[State v. Pierce, 188 N.J. 155, 162 (2006) (quoting State v. Dixon, 346 N.J.Super. 126, 140 (App. Div. 2001)).]
As the trial court found, defendant was eligible for an extended term as a persistent offender based on his age at the time of the present offense (thirty-one), his record of at least two predicate convictions, and the time of his last release from confinement. The court summarized defendant's five prior adult convictions: third-degree possession of a controlled dangerous substance (CDS) in 2006; third-degree distribution of CDS in 2007; third-degree possession of CDS with intent to distribute within 1,000 feet of school property in 2010; and second-degree distribution of CDS and third-degree possession of CDS with intent to distribute within 1,000 feet of school property in 2014.
The trial court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the "risk that the defendant will commit another offense"); aggravating factor six, N.J.S.A. 2C:44-1(a)(6) (the "extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the "need for deterring the defendant and others from violating the law"). The court placed "high weight" on these aggravating factors, noting the "substantial risk that the defendant will re-offend and a substantial need to protect the public from the defendant's conduct."
The court carefully examined the mitigating circumstances and found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (the "defendant has compensated or will compensate the victim . . . for the damage or injury that the victim sustained, or will participate in a program of community service"); mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) (the "defendant's conduct was the result of circumstances unlikely to recur"); and mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (the "character and attitude of the defendant indicate that the defendant is unlikely to commit another offense"). The court accorded "low to moderate weight" to the mitigating factors.
The court recognized that because defendant was a persistent offender, it could consider the full range from the bottom of the second-degree to the top of the first-degree, or five years to twenty years. In considering the need to protect the public and after weighing the aggravating and mitigating factors qualitatively, the court determined that the aggravating factors outweighed the mitigating factors and that an extended term of imprisonment as a persistent offender was appropriate. The court thereupon sentenced defendant to an aggregate term just under the midpoint of the extended term range for a second-degree crime-twelve years.
Defendant does not dispute that he is extended term eligible based on his criminal record. Nor does he challenge the trial court's findings of aggravating and mitigating factors. He nonetheless asserts that the trial court erred in imposing a sentence in the extended term range given the trial court's "acknowledgement that the facts of the offense were not above and beyond the ordinary elements and that it did not seem significantly likely to happen again." The scope of our review of sentencing decisions is narrow. Appellate courts review sentencing decisions for abuse of discretion. State v. Torres, 246 N.J. 246, 272 (2021). We do "not second-guess the sentencing court" and defer to the sentencing court's factual findings. State v. Case, 220 N.J. 49, 65 (2014). A sentence must be affirmed unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Whether a defendant meets the statutory eligibility criteria for an extended-term sentence, however, is a question of law we review de novo. Pierce, 188 N.J. at 166.
We see no abuse of discretion in sentencing defendant as a persistent offender, in weighing the applicable sentencing factors, or in imposing a twelveyear prison sentence. In view of defendant's criminal record, that prison sentence in no way shocks the judicial conscience. See Roth, 95 N.J. at 364.
To the extent we have not specifically addressed them, any remaining arguments raised by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We remand this matter for the limited purpose of merging the conviction for sexual assault by force and sexual assault of a minor and to amend the judgment of conviction accordingly. In all other respects we affirm. We do not retain jurisdiction.
Affirmed in part and reversed and remanded in part.