STATE OF NEW JERSEY v. R.J.R. (17-02-0139, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )


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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    NOT FOR PUBLICATION WITHOUT THE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-4407-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    R.J.R.,
    Defendant-Appellant.
    _______________________
    Submitted September 20, 2022 – Decided October 17, 2022
    Before Judges Sumners, Geiger and Susswein.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment No. 17-02-0139.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Lee March Grayson, Designated Counsel, on
    the brief).
    William C. Daniel, Union County Prosecutor, attorney
    for respondent (Michele C. Buckley, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant R.J.R.1 was indicted for first-degree aggravated sexual assault
    upon A.S. (Ava) when she was less than thirteen years old, N.J.S.A. 2C:14-2(a);
    second-degree sexual assault upon Ava when she was less than thirteen years
    old and defendant was at least four years older than Ava, N.J.S.A. 2C:14-2(b);
    and second-degree endangering the welfare of a child with sexual conduct,
    N.J.S.A. 2C:24-4(a)(1).
    After two Rule 104 testimonial hearings, Judge Candido Rodriguez, Jr.
    granted the State's motions to admit Ava's out-of-court statements. First, the
    judge, applying the tender years hearsay exception, N.J.R.E. 803(c)(27), ordered
    the admission of Ava's statements to Union County Prosecutor's Office Special
    Victim's Unit Detective Nicholas Falcicchio, which was video-recorded, and
    school guidance counselor Jasmine Lee. Next, the judge ordered the admission
    of Ava's statements to nurse practitioner Romelia Hasegawa, finding they were
    made for the purpose of a medical evaluation, N.J.R.E. 803(c)(4).
    1
    We use initials and pseudonyms to protect the privacy of the victim and
    preserve the confidentiality of these proceedings. N.J.S.A. 2A:82-46(a); R.
    1:38-3(c)(9). We use the pseudonym first name of the victim's mother for
    convenience; we mean no disrespect.
    A-4407-18
    2
    Following a five-day jury trial, in which Ava, Lee, Falcicchio, Hasegawa,
    and J.S. (Jill), Ava's mother, testified, defendant was found guilty of all charges.
    He was subsequently sentenced to an aggregate fifteen-year prison term.
    In this appeal, defendant contends:
    POINT I
    THE DEFENDANT'S CONVICTIONS SHOULD BE
    REVERSED BECAUSE THE TRIAL COURT
    IMPROPERLY GRANTED THE STATE'S MOTION
    TO ADMIT STATEMENTS MADE BY THE
    ALLEGED       VICTIM      TO   THE   NURSE
    PRACTITIONER        UNDER    THE   MEDICAL
    DIAGNOSIS EXCEPTION OF THE HEARSAY
    RULE, N.J.R.E. 803(c)(4).
    POINT II
    THE DEFENDANT'S CONVICTIONS SHOULD BE
    REVERSED BECAUSE THE TRIAL COURT ERRED
    BY PERMITTING THE NURSE PRACTITIONER,
    WHO WAS NOT A FORENSIC NURSE CERTIFIED
    SEXUAL ASSAULT EXAMINER (FN-CSA), TO
    TESTIFY AS AN EXPERT WITNESS FOR THE
    STATE   IN   THE   FIELD    OF   CHILD
    MALTREATMENT.
    POINT III
    THE DEFENDANT'S CONVICTIONS SHOULD BE
    REVERSED BECAUSE THE TRIAL COURT ERRED
    BY FAILING TO INSTRUCT THE JURY ON THE
    LIMITED   USE    OF    FRESH   COMPLAINT
    TESTIMONY. (Not Raised Below).
    A-4407-18
    3
    POINT IV
    THE DEFENDANT'S CONVICTIONS SHOULD BE
    REVERSED BECAUSE THE JURY VERDICT WAS
    AGAINST THE WEIGHT OF THE EVIDENCE. (Not
    Raised Below).
    POINT V
    THE SENTENCE IMPOSED BY THE TRIAL COURT
    WAS UNDULY EXCESSIVE.
    POINT VI
    REVERSAL IS REQUIRED IN THIS CASE
    BECAUSE OF THE CUMULATIVE EFFECTS OF
    THE     ERRORS DURING    THE  PRETRIAL
    HEARINGS, TRIAL[,] AND SENTENCING. (Not
    Raised Below).
    Having considered these arguments and the applicable law, we affirm for
    the reasons set forth below.
    I.
    We first address defendant's contentions in Point I and II concerning the
    Rule 104 ruling that Ava's statements to Hasegawa regarding the sexual assaults
    were admissible at trial and that Hasegawa could testify as expert regarding
    sexual mistreatment of children. Before detailing the admitted testimony and
    our analysis of Judge Rodriguez 's rulings, we begin with the understanding that
    a trial judge retains broad discretion in determining the admissibility of
    A-4407-18
    4
    evidence. State v. Garcia, 
    245 N.J. 412
    , 430 (2021). "The abuse of discretion
    standard instructs us to 'generously sustain [the trial court's] decision, provided
    it is supported by credible evidence in the record.'" State v. Brown, 
    236 N.J. 497
    , 522 (2019) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 
    202 N.J. 369
    , 384 (2010)).
    Ava's Statements
    At the Rule 104 hearing, Hasegawa, a nurse practitioner employed at the
    Metro Regional Diagnostic and Treatment Center (RDTC), Newark Beth Israel
    Medical Center, testified she routinely conducted medical examinations of three
    to four child patients a week for child maltreatment, sexual abuse, and physical
    abuse, the majority of which were done at the request of the New Jersey Division
    of Child Protection and Permanency (DCPP). She explained the examinations
    were not to collect evidence, but to ensure the child patient was "okay
    medically," check for injuries, facilitate testing, and provide appropriate
    treatment.
    As to Ava's medical exam–done at DCPP's request, Hasegawa said she
    first spoke with a DCPP worker, then spoke separately with Jill and Ava. After
    asking Jill about Ava's medical history and eating and sleeping habits, Hasegawa
    obtained Jill's consent to privately question and examine Ava.
    A-4407-18
    5
    Hasegawa examined Ava in a child-friendly medical suite. She told Ava
    she was a nurse practitioner and was going to examine her body like a doctor to
    make sure her "body's okay." In response to Hasegawa's question if Ava knew
    why she was there, Ava "spontaneously reported" that an adult male had "raped"
    her.2   Ava disclosed the abuse started when she was eight years old and
    continued until she was ten years old. Based on Ava's detailed revelations of
    the abuse, Hasegawa noted in her report that Ava suffered penile-vaginal
    penetration;    penile-anal   penetration;   oral-vaginal   contact;   penile-oral
    penetration; and digital-vaginal penetration.
    Due to Jill's and Ava's statements, Hasegawa conducted a full physical
    examination of Ava. The results were normal; Hasegawa expressed that given
    the passage of time between the examination and the last incident of abuse, she
    was not surprised because vaginas and anuses heal "quickly and completely."
    Hasegawa's medical report regarding Ava's examination was only
    provided to DCPP. However, Hasegawa notified Jill and Ava of her findings.
    In an oral decision, Judge Rodriguez ruled Ava's statements to Hasegawa
    2
    In admitting Ava's statements to Hasegawa under N.J.R.E. 803(c)(4), the judge
    ruled that her identification of defendant was not admissible under the hearsay
    exception, thus the only identifying information permitted was "that the
    perpetrator of the abuse was an adult male."
    A-4407-18
    6
    were admissible under N.J.R.E. 803(c)(4) because they "were made in the
    context of [a] pediatric health examination . . . with a focus to areas that [Ava]
    brought attention to in her disclosures of her injuries she incurred as a result of
    the alleged abuse in her statements." The judge found "[Ava] made [her]
    statements in good faith reliance that [Hasegawa] would treat her after she has
    established a significant rapport with both [Ava] and her mother before
    conducting the physical examination."       The judge further noted Hasegawa
    "immediately relayed" her findings to Ava and Jill at "each step of the
    examination." Consequently, the judge rejected defendant's contention that
    because Ava's statements "to [Hasegawa] were for the purpose of gathering
    evidence," they did not fall within the ambit of N.J.R.E. 803(c)(4).
    In his appeal, defendant repeats the argument dismissed by Judge
    Rodriguez. The law and the record support the judge 's ruling.
    Under N.J.R.E. 803(c)(4)(A), a hearsay statement is admissible provided
    it "is made in good faith for purposes of, and is reasonably pertinent to, medical
    diagnosis or treatment." See also Biunno, Weissbard & Zegas, Current N.J.
    Rules of Evidence, cmt. on N.J.R.E. 803(c)(4) (2022) ("The N.J.R.E. 803(c)(4)
    exception to the hearsay exclusionary rule is well known in New Jersey law and
    is based on the assumption that the declarant is more interested in obtaining a
    A-4407-18
    7
    diagnosis and treatment culminating in a medical recovery than he is in
    obtaining a favorable medical opinion culminating in a legal recovery.").
    Hasegawa's Rule 104 testimony supports the judge's finding that she was
    interviewing and examining Ava to determine medical diagnosis and treatment,
    and Ava 's statements were made in good faith response for those purposes.
    Defendant mistakenly relies on State v. Pillar, 
    359 N.J. Super. 249
    , (App.
    Div. 2003), in arguing Ava's statements to Hasegawa were inadmissible because
    Hasegawa's examination was for evidence gathering. In Pillar, the defendant
    was accused of sexually assaulting P.T., a female minor. 
    Id. at 257
    . After the
    indictment, P.T. was taken to a [Division of Youth and Family Services]3 doctor
    where she indicated that "'the kind of sexual abuse she was alleging included
    penile to genital area touching.'" 
    Id. at 287
    . "If the examination . . . was
    conducted for evidence gathering purposes, the hearsay statements contained in
    the medical history would be inadmissible as not falling within [N.J.R.E.
    803(c)(4)]." 
    Id.
     at 289 (citing State in Interest of C.A., 
    201 N.J. Super. 28
    , 33-
    34 (App. Div.1985)). In excluding only the part of the doctor's testimony
    relating to the specifics of sexual abuse alleged by P.T., we said "[t]he record is
    3
    The Division of Youth and Family Services is the predecessor to DCPP.
    A-4407-18
    8
    not entirely clear as to why P.T. was referred to [the doctor] for examination."
    
    Ibid.
    Pillar is not determinative in this matter. Unlike in Pillar, the record here
    is clear that Ava's examination was for medical purposes. Hasegawa examined
    Ava for purposes of medical diagnosis and treatment; ensuring Ava was "okay
    medically." Hasegawa explained that Ava's statements regarding her abuse
    directly impacted the course of the examination, making them relevant to her
    medical diagnosis and potential treatment. Consequently, there was no abuse of
    discretion in the judge's determination that Ava's statements were admissible
    under N.J.R.E. 803(c)(4). Hasegawa's Rule 104 hearing testimony supported
    the judge's finding that she was interviewing and examining Ava to determine
    medical diagnosis and treatment and that Ava 's statements were made in a good
    faith response for those purposes.
    Admissibility of Hasegawa as an Expert
    At trial, Judge Rodriguez qualified Hasegawa as an expert witness in child
    maltreatment based upon her testimony detailing her experience and training.
    Hasegawa has a Bachelor of Science degree in nursing and a Master of Science
    degree in nursing for advance nurse practitioners, which authorized her to see
    her own patients, write prescriptions, and perform acts similar to a medical
    A-4407-18
    9
    doctor. During her more than five years at the RDTC, she treated more than 150
    children for sexual abuse, physical abuse, or neglect. Approximately ninety
    percent were referred for sexual abuse, and approximately seventy percent of
    those involved females under the age of eighteen. Hasegawa acknowledged she
    was not certified as a sexual assault nurse examiner (SANE nurse) but stated she
    had more than 700 hours of clinical training, more than the sixty-four hours
    required for a SANE certification. Moreover, Hasegawa explained that, unlike
    a SANE nurse who is limited to forensic examinations, examining children, and
    collecting evidence for rape kits, she is qualified to examine children, make a
    diagnosis, and treat them.     In sum, the judge found "[Hasegawa] has the
    experience and the schooling to give an opinion as [an] expert."
    Defendant contends that because Hasegawa was not a New Jersey
    Forensic Nurse - Certified Sexual Assault Examiner (FN-CSA), she lacked the
    necessary training and expertise to testify as a child endangerment expert.
    Defendant maintains Hasegawa's testimony, if permitted at all, should have been
    limited to the results of her medical examination. We are unpersuaded.
    A trial judge's determination "that a witness is competent to testify as an
    expert is entitled to deference absent a showing of abuse of discretion." State v.
    Berry, 
    471 N.J. Super. 76
    , 121 (App. Div. 2022). The admissibility of expert
    A-4407-18
    10
    testimony is governed by N.J.R.E. 702, which states: "If scientific, technical,
    or other specialized knowledge will assist the trier of fact to understand the
    evidence or to determine a fact in issue, a witness qualified as an expert by
    knowledge, skill, experience, training, or education may testify thereto in the
    form of an opinion or otherwise." The rule also requires that: "(1) the intended
    testimony must concern a subject matter that is beyond the ken of the average
    juror; (2) the field testified to must be at a state of the art such that an expert's
    testimony could be sufficiently reliable; and (3) the witness must have sufficient
    expertise to offer the intended testimony." State v. Jenewicz, 
    193 N.J. 440
    , 454
    (2008). These requirements are construed "liberally in light of Rule 702's tilt in
    favor of the admissibility of expert testimony." State v. Rosales, 
    202 N.J. 549
    ,
    562 (2010) (quoting Jenewicz, 
    193 N.J. at 454
    ).
    The fact that Hasegawa was not a FN-CSA is not dispositive of her
    qualification to testify as an expert in this matter. Her education and experience,
    particularly her role at the RDTC in examining children suffering from
    maltreatment, including victims of sexual abuse, spoke to her qualifications
    concerning the issues before the jury. Defendant points to no requirement that
    Hasegawa have a specific amount of experience or engage in a specific training
    protocol. In fact, as the judge reasoned, her experience at the RDTC qualified
    A-4407-18
    11
    her to give expert testimony. See State v. Torres, 
    183 N.J. 554
    , 572 (2005)
    (citing to State v. Moore, 
    122 N.J. 420
    , 457-60 (1991)) ("The expert may be
    qualified on the basis of his experience, even when it is limited."). Moreover,
    to the extent that Hasegawa had any deficiencies in her experience, this was
    appropriately explored at length during cross-examination. See Jenewicz, 
    193 N.J. at 455
     (noting that "courts allow the thinness and other vulnerabilities in an
    expert's background to be explored in cross-examination and avoid using such
    weaknesses as a reason to exclude a party's choice of expert witness to advance
    a claim or defense").
    Hasegawa's Testimony
    Defendant contends Hasegawa's lack of qualification demonstrated "great
    bias" when she refused to acknowledge the possibility that a lack of forensic
    evidence could indicate a false allegation of sexual abuse. Defendant points to
    the following cross-examination exchange:
    [Defense Attorney]: We add to this the fact that there
    are no forensic findings because of the possibility that
    the disclosure itself is false.
    [Hasegawa]: I do medical examinations. I don't do
    forensic evaluations.
    [Defense Attorney]: You accept the possibility that in
    a given case there could be no residual findings because
    the disclosure of sexual abuse is false?
    A-4407-18
    12
    [Hasegawa]: No.
    [Defense Counsel]: That would mean then that to you
    the disclosure of sexual abuse is always true?
    [Hasegawa]: It's based on what the child tells me.
    [Defense Counsel]: So the child in your mind never
    lies?
    [Prosecutor]: Objection. Your Honor, it's for the jury
    to decide, not this witness.
    THE [JUDGE]: I think it's a proper question. I'll allow
    it.
    [Hasegawa]: Go ahead. Please state it again.
    [Defense Counsel]: So the child in your mind never
    lies?
    [Hasegawa]: Children under the age of 10 typically are
    not the best liars, if I may say. They tend to –
    [Defense Counsel]: Are you –
    [Prosecutor]: He asked the question.
    [Defense Counsel]:     The question was yes or no
    question.
    THE [JUDGE]: Can you answer it yes or no?
    [Hasegawa]: No, I can't.
    THE [JUDGE]: She's going to answer it the way she
    can answer it.
    A-4407-18
    13
    [Defense Counsel]: Well, I didn't ask her why. I just
    asked her is it possible.
    [Hasegawa]: I can't answer it yes or no.
    Defendant contends Hasegawa's testimony suggesting Ava was not lying
    bolstered Ava's credibility and was harmful error clearly capable of producing
    an unjust result.    This contention, however, is raised in the context of
    challenging the trial judge's qualification of Hasegawa as an expert. Defendant's
    brief does not articulate a substantive legal analysis that the testimony was
    bolstering Ava's credibility.    Consequently, whether Hasegawa's testimony
    improperly bolstered the credibility of Ava's accusations is not properly before
    us and need not be addressed on appeal. R. 2:6-2(6); R. 2:6-9. See, e.g., Nextel
    of N.Y., Inc. v. Bd. of Adjustment, 
    361 N.J. Super. 22
    , 45 (App. Div. 2003)
    (citing Miller v. Reis, 
    189 N.J. Super. 437
    , 441 (App. Div.1983)) ("Where an
    issue is based on mere conclusory statements by the brief writer, we will not
    consider it."); State v. Hild, 
    148 N.J. Super. 294
    , 296 (App. Div. 1977) (stating
    "parties may not escape their initial obligation to justify their positions by
    specific reference to legal authority").
    Nevertheless, in considering defendant's contention, we conclude it is
    without merit. While it is well-established that an expert "cannot express an
    opinion on the credibility of a witness or party," State v. Sowell, 
    213 N.J. 89
    ,
    A-4407-18
    14
    103 (2013), Hasegawa did not definitively state children always tell the truth;
    rather, her cross-examination response attempted to explain why she could not
    provide a direct response regarding the veracity of child victims.      Because
    neither the question nor Hasegawa's response referred to Ava, defendant's
    contention that her statements bolstered Ava's credibility falls short.
    Furthermore, consistent with our well-established guidelines, the judge
    instructed the jury it was free to weigh the credibility of Hasegawa's testimony,
    and it could accept or reject some or all of her testimony.
    In addition, defendant contends Hasegawa's lack of training "was critical
    because she was permitted to speculate to the jury as an expert about why her
    forensic findings of a normal exam were expected." Defendant's objection
    relates to Hasegawa's testimony that approximately ninety to ninety-five percent
    of her cases involving vaginal penetration yielded "normal" vaginal exams, with
    the remaining amount involving "fresh injuries." Hasegawa opined that given
    the passage of time since Ava's last reported incident, Ava's "normal" physical
    examination results were expected, as abrasions or transections in the vagina
    generally heal "quickly and completely." Defendant, however, did not object to
    this testimony. Thus, we need not address the issue. R. 2:6-2(6); Sklodowsky
    A-4407-18
    15
    v. Lushis, 
    417 N.J. Super. 648
    , 657 (App. Div. 2011) ("An issue not briefed on
    appeal is deemed waived.").
    Yet, in considering defendant's contention, we conclude it is without
    merit. Hasegawa's opinion was consistent with N.J.R.E. 703, which mandates
    an expert opinion be grounded in "facts or data derived from . . . the expert's
    personal observations . . . ." State v. Townsend, 
    186 N.J. 473
    , 494 (2006)
    (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. on
    N.J.R.E. 703 (2005)). Further support is found in Pillar, where we held that,
    while the child's statements to the doctor were inadmissible under N.J.R.E.
    803(c)(4), the remainder of the doctor's testimony was admissible, including her
    "expert testimony as to whether her negative physical examination of [the child]
    was consistent with the abuse testified to by [the child] . . . ." 
    359 N.J. Super. at 290
    . The doctor's testimony included statements that she had expected normal
    results, and such findings were consistent with her examination of other girls.
    
    Id. at 288-89
    . Because Hasegawa's statements regarding "normal" findings were
    based on her relevant training and experience, the judge did not abuse his
    discretion in permitting Hasegawa to offer this opinion.
    II.
    A-4407-18
    16
    In Point III, defendant contends the trial judge erred by failing to instruct
    the jury on the limited use of fresh complaint testimony when admitting the
    testimony of Lee and Falcicchio about Ava's disclosure that defendant sexually
    abused her.   Because their testimony was admitted under the tender years
    exception to the hearsay rule, N.J.R.E. 803(c)(27), and not as fresh complaint
    testimony, the contention is without merit. 4
    In his written decision granting the State's application to admit Ava's
    statements to Lee and Falcicchio under N.J.R.E. 803(c)(27), Judge Rodriguez
    found:   (1) defendant had sufficient notice the State intended to offer the
    statements at trial; (2) Ava's statement was made within two years of the alleged
    abuse, with sufficient content to make it trustworthy; (3) Ava's statements were
    made spontaneously, she expressed discomfort when describing certain acts, and
    her description of the sexual abuse showed an understanding of sexual behavior
    consistent with that of a ten year old; and (4) there was little indication of a
    motivation to fabricate. Considering there is no argument that Ava's statements
    4
    We note that at the conclusion of Lee's trial testimony, the judge misspoke by
    referring to her testimony as fresh complaint testimony, but he immediately
    corrected himself and clarified the testimony was admissible under the tender
    years hearsay exception, N.J.R.E. 803(c)(27).
    A-4407-18
    17
    were improperly introduced under N.J.R.E. 803(c)(27), there is no reason to
    address the judge's rulings.
    III.
    In Point IV, defendant contends there was insufficient credible evidence
    to support the jury's verdict. Because he failed to move under Rule 3:20-15
    before the trial judge for a new trial, his contention is not cognizable on appeal.
    See R. 2:10-1;6 see also State v. Fierro, 
    438 N.J. Super. 517
    , 530 (App. Div.
    2015) ("We do not consider a weight-of-the evidence argument on appeal unless
    the appellant moved in the trial court for a new trial on that ground.").
    5
    Rule 3:20-1, provides in relevant part:
    The trial judge shall not . . . set aside the verdict of the
    jury as against the weight of the evidence unless,
    having given due regard to the opportunity of the jury
    to pass upon the credibility of the witnesses, it clearly
    and convincingly appears that there was a manifest
    denial of justice under the law.
    6
    Under Rule 2:10-1, "[i]n both civil and criminal actions, the issue of whether
    a jury verdict was against the weight of the evidence shall not be cognizable on
    appeal unless a motion for a new trial on that ground was made in the trial court."
    A-4407-18
    18
    Nevertheless, we can consider the merits of defendant's contention in the interest
    of justice. State v. Smith, 
    262 N.J. Super. 487
    , 511 (App. Div. 1993). We do
    so here.
    "In considering whether a jury verdict was against the weight of the
    evidence, our task is to decide whether 'it clearly appears that there was a
    miscarriage of justice under the law.'" 
    Id. at 512
     (quoting R. 2:10-1). "We must
    sift through the evidence 'to determine whether any trier of fact could rationally
    have found beyond a reasonable doubt that the essential elements of the crime
    were present.'" 
    Ibid.
     (quoting State v. Carter, 
    91 N.J. 86
    , 96 (1982)). "But an
    appellate court may not overturn the verdict 'merely because it might have found
    otherwise upon the same evidence.'" 
    Ibid.
     (quoting State v. Johnson, 
    203 N.J. Super. 127
    , 134 (App. Div. 1985)).
    "On a motion for a new trial, the objective is not to second-guess the jury
    but to correct [an] injustice that would result from an obvious jury error." State
    v. Saunders, 
    302 N.J. Super. 509
     (App. Div. 1997). Thus, "[a]ppellate
    intervention is warranted only to correct an 'injustice resulting from a plain and
    obvious failure of the jury to perform its function.'" Smith, 
    262 N.J. Super. at 512
     (quoting Johnson, 
    203 N.J. Super. at 134
    ). "Where the jury's verdict was
    grounded on its assessment of witness credibility, a reviewing court may not
    A-4407-18
    19
    intercede, absent clear evidence on the face of the record that the jury was
    mistaken or prejudiced." 
    Ibid.
     (citing State v. Haines, 
    20 N.J. 438
    , 446-47
    (1956)).
    Defendant contends the jury's verdict was unjust because it relied on Ava's
    credibility, which was lacking. He argues Lee's, Falcicchio's, and Hasegawa's
    testimony was not based on witnessing any sexual abuse but merely recounting
    Ava's false disclosures; there was no forensic evidence of sexual abuse
    supporting Ava's accusations; and Ava purportedly was the only witness to the
    abuse, despite some incidents allegedly having occurred in the presence of Elias,
    her three-year younger half-brother. Consequently, defendant contends Ava's
    credibility issues, compounded by the repetition of Ava's disclosures and the
    lack of fresh-complaint instruction, resulted in an unjust verdict.
    We discern no cause to vacate the jury's verdict because there is no
    apparent jury error. See State v. Saunders, 
    302 N.J. Super. at 524
     (On a motion
    for a new trial, the objective is not to second-guess the jury but to correct the
    injustice that would result from an obvious jury error.). Ava's testimony alone
    ––she was sexually penetrated on more than one occasion by defendant, a man
    who resided with her and whom she viewed as a father––established all the
    elements of the convicted crimes. The jury had the discretion to weigh her
    A-4407-18
    20
    testimony, assess her demeanor, and judge her credibility, which indeed, it was
    charged to do. In assessing the evidence, the jury also was able to consider Jill's
    testimony that Ava did not tell her about the abuse, and determine to what extent,
    if any, it contradicted Ava's testimony. Moreover, it was able to draw its own
    conclusions regarding her accusations to Lee, Falcicchio, Hasegawa, as well as
    Hasegawa's testimony regarding Ava's examination and the lack of forensic
    evidence that Ava was abused.
    The jury's verdict was based on its assessment of witness credibility, and
    there was nothing in the record demonstrating it was without factual support.
    See Smith, 
    262 N.J. Super. at
    512 (citing Haines, 
    20 N.J. at 446-47
    ) ("Where
    the jury's verdict was grounded on its assessment of witness credibility, a
    reviewing court may not intercede, absent clear evidence on the face of the
    record that the jury was mistaken or prejudiced.").        Moreover, defendant's
    attacks on Lee's, Falcicchio's, and Hasegawa's testimony do not support his
    weight against the evidence argument. As mentioned above, Ava's statements
    to Lee and Falcicchio were properly admitted under the tender years exception,
    and her statements to Hasegawa were appropriately admitted under made for the
    purpose of a medical evaluation N.J.R.E. 803(c)(4).           Hence, defendant's
    convictions must stand.
    A-4407-18
    21
    IV.
    In Point V, Defendant contends that the sentence imposed was unduly
    excessive in that the judge failed to apply any mitigating factors,
    overemphasized the aggravating factors, did not impose a sentence "one degree
    lower than the presumptive sentence," and did not impose a sentence towards
    the bottom end of the range for first-degree sentences. We are unpersuaded.
    Defendant was sentenced to a fifteen-year prison term with a period of
    eighty-five percent parole ineligibility pursuant to the No Early Release Act,
    N.J.S.A. 2C:43-7.2, for first-degree aggravated sexual assault. The offense of
    second-degree sexual assault was merged into the aggravated sexual assault
    offense. He was sentenced to a concurrent seven-year prison term for second-
    degree endangering the welfare of a child.
    In imposing defendant's sentence, the judge applied aggravating factors
    two ("[t]he gravity and seriousness of harm inflicted on the victim"); three ("the
    risk that the defendant will commit another offense"); and nine ("need for
    deterring the defendant and others from violating the law"). N.J.S.A. 2C:44 -
    1(a)(2), (3), and (9).   The judge's analysis was aided by an Avenel Adult
    Diagnostic and Treatment Center risk assessment report by a licensed
    A-4407-18
    22
    psychologist, which concluded defendant's "behavior meets the criteria for a
    repetition but not for compulsion."
    The judge did not find any mitigating factors. He rejected mitigating
    factor seven ("no history of prior delinquency or criminal activity"), N.J.S.A.
    2C:44-1(b)(7), because defendant had prior criminal convictions albeit remote
    in time. The judge also declined to consider mitigating factor eight ("defendant's
    conduct was the result of circumstances unlikely to recur"), N.J.S.A. 2C:44-
    1(b)(8), reasoning that, while defendant's parole supervision and Jill's decision7
    prevent him from having contact with Ava in the future, he must also protect
    "all [possible] victims" from future harm. In refusing to apply mitigating factor
    nine ("character and attitude of the defendant indicate that the defendant is
    unlikely to commit another offense"), N.J.S.A. 2C:44-1(b)(9), the judge found
    that any positive representations regarding defendant's character were
    undermined by his behavior towards Ava in the presence of her stepbrother. The
    judge also declined to apply mitigating factor eleven ("imprisonment of the
    defendant would entail excessive hardship to the defendant or the defendant’s
    dependents"), N.J.S.A. 2C:44-1(b)(11), stating that while defendant's son with
    7
    At sentencing, the State presented Jill's letter stating she and defendant agreed
    to be apart and the future interactions with their shared son will be under
    supervised conditions.
    A-4407-18
    23
    Jill may be adversely impacted from his separation from defendant, his son had
    Jill's support. In sum, the judge determined aggravating factors outweigh non-
    existent mitigating factors.
    The scope of our review of a sentence is limited. As a general matter, we
    review sentences under an abuse of discretion standard. State v. Pierce, 
    188 N.J. 155
    , 166 (2006). Under that standard, a "reviewing court must not [simply]
    substitute its judgment for that of the sentencing court." State v. Fuentes, 
    217 N.J. 57
    , 70 (2014) (citing State v. O'Donnell, 
    117 N.J. 210
    , 215 (1989)). Rather,
    [t]he appellate court must affirm the 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."
    [Ibid. (second alteration in original) (quoting State v.
    Roth, 
    95 N.J. 334
    , 364–65 (1984)).]
    In this instance, Judge Rodriguez carefully considered the aggravating and
    mitigating circumstances and sufficiently explained his findings. See State v.
    Case, 
    220 N.J. 49
    , 64–65 (2014) (requiring judges to consider any relevant
    aggravating and mitigating factors called to their attention and to explain how
    they arrived at a particular sentence). The judge presided over the trial and thus
    A-4407-18
    24
    was intimately familiar with the circumstances of the offense.             He gave
    appropriate weight to aggravating factors and carefully considered, but rejected,
    the mitigating factors proposed by defendant. The judge imposed a sentence in
    the middle of the range, with ten years for a first-degree offense and seven years
    for a second-degree offense.
    Finally, downgrading defendant's conviction from a first-degree conviction to
    a second degree for sentencing purposes occurs on a limited basis. N.J.S.A. 2C:44-
    1(f)(2) provides a downgrade of an offense to a crime that is one degree lower is
    only proper where the judge is clearly convinced that the mitigating factors
    "substantially outweigh the aggravating factors and where the interest of justice
    demands." To downgrade, the judge must be clearly convinced that the mitigating
    factors substantially outweigh the aggravating factors, the interests of justice must
    be compelling, and in addition to the mitigating factors, there must be something
    extra, which points to downgrading the offense. State v. Megargel, 
    143 N.J. 484
    ,
    504-05 (1996).
    The judge rejected defendant's request to reduce his sentence a degree lower
    because there were no mitigating factors which substantially outweighed the
    aggravating factors, and the interest of justice did not demand a downward sentence.
    The judge's finding is supported by the record and should not be disturbed.
    A-4407-18
    25
    In sum, defendant's sentence was consistent with our sentencing
    guidelines in the New Jersey Code of Criminal Justice. The sentence is neither
    shocking nor manifestly excessive. Accordingly, we discern no basis to second-
    guess the sentence.
    V.
    Finally, in Point VI, defendant contends the cumulative errors––rulings
    from pre-trial through sentencing––warrant reversal of his convictions or
    remand for trial or resentencing. We disagree.
    When multiple errors are alleged, "the predicate for relief for cumulative
    error must be that the probable effect of the cumulative error was to render the
    underlying trial unfair."    State v. Wakefield, 
    190 N.J. 397
    , 538 (2007).
    However, even where a defendant alleges multiple errors, "the theory of
    cumulative error will still not apply where no error was prejudicial and the t rial
    was fair." State v. Weaver, 
    219 N.J. 131
    , 155 (2014). Given our conclusions
    that defendant has failed to demonstrate there were prejudicial pretrial and trial
    errors, there was no cumulative effect that denied defendant a fair trial.
    Affirmed.
    A-4407-18
    26