STATE OF NEW JERSEY VS. L.O.R. (17-08-1179, BERGEN 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    NOT FOR PUBLICATION WITHOUT THE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-1237-18T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    L.O.R.,
    Defendant-Appellant.
    _______________________
    Submitted November 9, 2020 – Decided February 3, 2021
    Before Judges Fasciale and Rothstadt.
    On appeal from the Superior Court of New Jersey, Law
    Division, Bergen County, Indictment No. 17-08-1179.
    Nathan Kittner, attorney for appellant.
    Mark Musella, Bergen County Prosecutor, attorney for
    respondent (William P. Miller, Assistant Prosecutor, of
    counsel; Catherine A. Foddai, Legal Assistant, on the
    brief).
    PER CURIAM
    In this appeal, we are asked to consider whether, in a sexual assault case,
    the admission of a child victim's Rule 803(c)(27) videotaped pretrial interview
    violated a defendant's Confrontation Clause rights when the recording was
    played for the jury after the child victim testified at trial and had been excused.
    For the reasons stated in this opinion, we conclude that the trial court did not err
    in applying Rule 803(c)(27) and that defendant's Confrontation Clause rights
    were not violated because he had an opportunity to conduct meaningful cross-
    examination of the victim at trial but chose not to do so.
    A jury convicted defendant L.O.R.1 of having committed one count of
    first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), three counts of
    second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of second-
    degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). The first-
    degree crime stated in the first count was based upon his ten-year-old
    stepdaughter's statement to police that defendant digitally penetrated her.
    On appeal, defendant challenges his conviction and argues the following
    point:
    1
    We use initials to protect the privacy of the victim and other family members.
    R. 1:38-3(c)(12).
    A-1237-18T2
    2
    POINT I
    THE TRIAL COUR[T] ERRED BY REFUSING TO
    DISMISS COUNT ONE OF INDICTMENT 17-08-
    01179-I FOLLOWING CONCLUSION OF THE
    TESTIMONY.
    According to defendant, while his conviction on the first count was based
    upon a videotaped pretrial interview in which the child victim detailed his digital
    penetration of her, when she testified at trial, she denied that type of assault
    occurred. After she testified and left the courtroom, and with the trial court's
    prior permission, the State played the videotape for the jury in which the victim
    stated that defendant placed his fingers inside of her vagina.          The taped
    statement was the only evidence of penetration.
    Defendant contends that although at the time the victim testified his
    attorney had a copy of the transcript of the victim's videotaped statement that
    she could have used on cross-examination, the trial court's permitting the
    videotape to be played after the victim testified and left the courtroom violated
    his Confrontation Clause rights and warranted the dismissal of the indictment's
    first count. We disagree.
    For our purposes, we need only briefly summarize the facts that led to
    defendant's arrest and conviction. In April 2017, the then-ten-year-old victim
    A-1237-18T2
    3
    disclosed to a friend that defendant, who lived with her, her mother and other
    family members, had sexually assaulted her. That disclosure led to the police
    being contacted and the Bergen County Prosecutor's Office (BCPO) initiating
    an investigation that led it to conclude defendant had been sexually assaulting
    the victim from January 2015 through April 3, 2017.
    During a videotaped interview conducted by BCPO Detective Melissa
    Cullen on April 5, 2017, the victim told Cullen about one incident of sexual
    abuse that occurred in January 2017 while her mother was out attending to the
    laundry. The victim explained that while at home with defendant, he asked her
    to come downstairs into her mother's bedroom to watch a movie.                  She
    specifically stated that once she and defendant were laying down watching a
    movie, defendant proceeded to touch her underneath her clothes, then on top of
    her vagina, before digitally penetrating her with two fingers.
    Defendant was arrested and charged in an indictment with the offenses
    that the jury convicted him of committing. Prior to his trial, the court conducted
    a Rule 104 hearing in response to the State's motions to admit fresh complaint
    testimony and the video of the victim's statement under Rule 803(c)(27). At the
    conclusion of the hearing, the trial court ruled that the video was admissible and
    could be played by the State in its case-in-chief so long as the victim testified at
    A-1237-18T2
    4
    trial. The court stated that "the child ha[d] to testify before" the videotaped
    statement could be used at trial.
    At the beginning of defendant's trial, he requested that the victim's video
    statement be played for the jury while she was still on the witness stand. Defense
    counsel acknowledged she was in possession of a transcript of the interview, but
    argued that if the video was played after the victim testified and had been
    excused from the witness stand, defendant "would be effectively prevented from
    cross-examining [the victim] about her video statement and would therefore be
    prevented from conducting full and comprehensive cross-examination in front
    of the jury," essentially "eliminating" defendant's ability to cross-examine her
    as to her statements.
    The trial court was not persuaded and ruled that, consistent with its Rule
    104 hearing determination, the State would be permitted to play the video
    statement during its case-in-chief at a point in the State's discretion so long as
    the victim testified first. The court did not discern any prejudice to defendant
    and was satisfied that "defendant's right of confrontation [was] protected"
    "because the defendant has the statement, has the video of the statement and has
    the transcript of the statement."
    A-1237-18T2
    5
    During her direct examination at trial, the victim testified to various
    instances of sexual assault that occurred from 2015 to 2017 that involved
    defendant touching her "on top" of her vagina and defendant taking her hand,
    putting it inside his pants, and forcing her to touch his penis. Turning to the
    January 2017 incident, the prosecutor asked, "When you said the defendant
    touched your vagina, was it outside, inside, or something else?" to which she
    responded, "It was on top." The prosecutor then asked, "At any point did the
    defendant touch the inside of your vagina?" to which she responded, "No."
    Following the conclusion of her testimony on direct, defense counsel
    cross-examined the victim for over an hour. The cross-examination did not
    address the inconsistency between the victim's testimony at trial and in the
    videotaped statement about digital penetration, but defense counsel used the
    transcript from the earlier statement to question the victim about other
    inconsistencies. On redirect, the victim reiterated that defendant used his fingers
    to touch her but did not mention any penetration. Afterward, following a brief
    recross examination, the court excused the victim from the courtroom.
    Defendant never asked to recall the victim as a witness.
    After the victim left, defendant immediately moved to bar the videotape
    from being played because the victim's testimony contradicted her videotaped
    A-1237-18T2
    6
    statement, and without the testimony at trial, there was no support for the first-
    degree charge that was based on digital penetration. The trial court denied the
    application because defense counsel had seen the videotape and had the
    transcript, and therefore had an adequate opportunity to cross-examine the
    victim about her statements before the tape was played but chose not to question
    the victim. Later in the trial, the court also explained that the videotaped
    statement was, as it previously ruled, admissible as substantive evidence under
    Rule 803(c)(27), and there was no authority to support barring its admission
    simply because it contained statements made at an earlier time that were
    inconsistent with the victim's trial testimony.
    On July 20, 2018, defendant filed a letter brief with the court that argued
    for the dismissal of count one of the indictment. Four days later, after the
    conclusion of the testimony but prior to counsels' closing statements, defense
    counsel renewed defendant's motion for judgment of acquittal under Rule 3:18-
    1 to dismiss all counts against defendant and specifically urging that the first
    count alleging aggravated sexual assault be dismissed on the basis that admitting
    the video tape, the only evidence of guilt under count one, violated defendant's
    Confrontation Clause rights. Defendant contended that by permitting the State
    to play the videotape after the victim had been excused as a witness, and by
    A-1237-18T2
    7
    concluding that defense counsel had adequate opportunity to cross-examine
    defendant because defense counsel had access to the video and transcript of the
    statement, the trial court effectively forced defense counsel to "choose whether
    to elicit damaging testimony from [the victim] which was not presented in her
    direct examination," or otherwise require her to "call [the victim] as a defense
    witness, thereby shifting the burden of proof to the defendant to call a hostile
    witness to prove that the events set forth in Count One of the Indictment did not
    occur." The trial court denied the application for the same reasons it had stated
    in response to defendant's earlier applications.
    Later, in her summation to the jury, defense counsel relied upon the
    inconsistencies in the victim's statement and testimony to undermine her
    credibility with the jury. She specifically compared the victim's allegation in
    her video statement that defendant had digitally penetrated her with her
    testimony at trial and argued that the victim had given "completely contradictory
    and irreconcilable statements regarding digital penetration."
    The next day the jury convicted defendant of all charges stated in the
    indictment. Later, the trial court sentenced defendant to an aggregate term of
    40 years of imprisonment, subject to a mandatory period of parole ineligibility
    under the No Early Release Act, N.J.S.A. 2C:43-7.2.
    A-1237-18T2
    8
    On November 6, 2018, defense counsel filed a motion to have the trial
    court conduct a hearing to question a juror who had served as an alternate and
    had been contacting the court after the trial to obtain the name and contact
    information of defense counsel. On December 14, 2018, the court held a hearing
    where the juror testified that he personally did not think that defendant was
    guilty, and that he had heard the other jurors state that they "based the[ir]
    decision on whether [the victim] changed her testimony or not and did[ not] pay
    attention to anything else." When the court asked the juror whether he had
    gotten any indication that the deliberating jurors had considered evidence that
    they were not supposed to consider, the juror answered, "No." Based on the
    juror's answer, the trial court found that there was no "need for any follow up."
    This appeal followed.
    On appeal, defendant contends that the trial court should have
    reconsidered its earlier ruling admitting the videotaped interview into evidence
    after the victim testified in court inconsistently with what she said in the
    interview, and it should have dismissed the indictment's first count.         We
    disagree.
    Our review of a trial court's evidentiary rulings is limited. We will not
    overturn a trial court's evidentiary rulings unless it is clear that the court
    A-1237-18T2
    9
    palpably abused its discretion. State v. R.Y., 
    242 N.J. 48
    , 64-65 (2020). "[A]n
    abuse of discretion 'arises when a decision is made without a rational
    explanation, inexplicably departed from established policies, or rested on an
    impermissible basis.'" 
    Id. at 65
     (quoting Flagg v. Essex Cnty. Prosecutor, 
    171 N.J. 561
    , 571 (2002)). In other words, the trial court's rulings on evidentiary
    matters will not be set aside unless we are "convinced that 'the trial court's ruling
    is so wide of the mark that a manifest denial of justice resulted.'" State v. Prall,
    
    231 N.J. 567
    , 580 (2018) (quoting State v. J.A.C., 
    210 N.J. 281
    , 295 (2012)).
    We review the constitutional implications of the trial court's evidentiary
    rulings for errors of law. State v. Sims, __ N.J. Super. __, __ (App. Div. 2021)
    (slip op. at 29) (citing State v. McInerney, 
    450 N.J. Super. 509
    , 512 (App. Div.
    2017)). Deference will not be afforded if the trial court has misapplied the law
    to an evidentiary issue. See State v. Hathaway, 
    222 N.J. 453
    , 467 (2015).
    Under Rule 803(c)(27), an out-of-court video statement made by a child
    victim is generally admissible if the trial court determines in advance that (1)
    the proponent of evidence gave notice to the opponent of the intent to use the
    evidence, (2) the court determined at a Rule 104 hearing that the video statement
    was trustworthy under the totality of the circumstances, and (3) the child was
    present to testify at trial.
    A-1237-18T2
    10
    When making a determination under the Rule's second requirement about
    the reliability of a statement, a court must consider "the totality of the
    circumstances." State in interest of A.R., 
    234 N.J. 82
    , 103 (2018) (quoting State
    v. P.S., 
    202 N.J. 232
    , 249 (2010)). In doing so, the court considers "a non-
    exclusive list of factors relevant to evaluating the reliability of out-of-court
    statements made by child victims of sexual abuse, including spontaneity,
    consistent repetition, mental state of the declarant, use of terminology
    unexpected of a child of similar age, and lack of motive to fabricate." 
    Ibid.
    (emphasis omitted) (quoting P.S., 
    202 N.J. at 249
    ). Consistency in the victim's
    statement is therefore only one factor in the "non-exclusive" list of factors to be
    considered in determining reliability.
    At the Rule 104 hearing in this case, the trial court considered the "time,
    content, and circumstances" of the victim's statement to determine its
    trustworthiness. The court found that the statement was trustworthy because the
    victim's "initial disclosure of the abuse . . . was spontaneous [and] not in
    response to questioning"; she had "consistently maintained the[] allegations";
    her "mental state at the time she gave the statement was calm and collected";
    "her use of terminology during the interview was that expected of a 10-year-
    old"; "she ha[d] no motive to fabricate, and the [detective] to whom she gave a
    A-1237-18T2
    11
    statement was . . . not a person to whom a 10-year-old would lie"; and the
    "comfortable setting" and "serious tone" of the interview established a setting
    that was "likely to elicit truthfulness."
    Addressing the interviewer, the trial court noted that Cullen did not ask
    the victim leading questions on critical issues and that there was no issue with
    "incessant questioning." The court also noted that the "descriptions of the events
    were extremely detailed . . . indicating that the statement itself is reliable." On
    these bases, the trial court ruled that, under the totality of the circumstances, the
    statement was reliable and could be presented by the State, so long as the victim
    testified at trial.
    Here, defendant does not challenge the trial court's original ruling.
    Rather, he argues that the victim's failure at trial to corroborate her earlier
    statement undermined the second requirement under Rule 803(c)(27) which
    warranted the tape not being admitted into evidence and played for the jury and,
    by extension, the dismissal of the indictment's first count for a lack of supporting
    evidence. We find no merit to his argument.
    Contrary to defendant's contention, a child victim's in-court testimony that
    contradicts an earlier out-of-court statement does not require that the 803(c)(27)
    statement be barred from admission. See State v. Nyhammer, 
    197 N.J. 383
    , 410-
    A-1237-18T2
    12
    11 (2009). In Nyhammer, the Court explained that even if a child could not
    recall or corroborate what the child had previously reported, the prior out -of-
    court statement was still admissible as long as the criteria of N.J.R.E. 803(c)(27)
    continued to be met. 
    Id. at 410-15
    .
    Nevertheless, a trial court remains free to revisit the issue of reliability
    after considering the victim's testimony at trial. See State v. Smith, 
    158 N.J. 376
    , 389 (1999) (noting that the trial court's decision to reserve judgment on
    reliability until hearing testimony at trial allowed it to "compare key factors such
    as the spontaneity and consistency of the child's responses to questions and the
    language or terminology used by the child."). But, inconsistent testimony at
    trial does not necessarily impugn the reliability of an initial out-of-court
    statement. See State v. D.R., 
    109 N.J. 348
    , 360 (1988) (noting that a child's
    testimony "is often affected by the stress of the courtroom experience, the
    presence of the defendant . . . the prosecutor's need to resort to leading questions
    [and t]he lapse of time between the sexual assault and the trial" and that "[i]n
    cases where the accused is a member of the child's family or household, the
    victim may be urged or coerced to recant."); State v. Burr, 
    392 N.J. Super. 538
    ,
    565-66 (App. Div. 2007), aff'd as modified on other grounds, 
    195 N.J. 119
    (2008).
    A-1237-18T2
    13
    Under these circumstances, we conclude that the trial court did not abuse
    its discretion in admitting the child victim's interview even though her trial
    testimony was not consistent with her earlier out-of-court statement.         The
    discrepancies in the live testimony and the videotaped testimony were not a
    reason to find the videotaped statement untrustworthy as a matter of law. The
    problems often encountered by young children in testifying in court are exactly
    the reasons why Rule 803(c)(27) was enacted in accordance with what the
    Supreme Court proposed in D.R., 
    109 N.J. at 371-77
    , in response to a "need for
    a more liberal rule of admissibility with respect to out-of-court statements of
    young sexual abuse victims." Biunno, Weissbard & Zegas, Current N.J. Rules
    of Evidence, cmt. 2 on N.J.R.E. 803(c)(27) (2020).
    Discrepancies between an out-of-court statement and live testimony can
    be, as defense counsel did here, argued to the jury as bearing upon the victim's
    credibility. They do not control the analysis of the totality of the circumstances
    to be made by the judge in evaluating whether the out-of-court statement was
    sufficiently trustworthy. To accept that as a valid and conclusive consideration
    would, in effect, defeat the purpose of relaxing the hearsay rule in child sexual
    abuse cases.
    A-1237-18T2
    14
    We also conclude that the trial court's decision to allow the videotaped
    interview to be played after the victim completed her testimony was not an abuse
    of discretion as it did not violate defendant's Confrontation Clause rights. "[T]he
    Sixth Amendment to the United States Constitution and Article I, Paragraph 10
    of the New Jersey Constitution provide that the accused in a criminal
    prosecution has the right 'to be confronted with the witnesses against him.'"
    State v. Cabbell, 
    207 N.J. 311
    , 328 (2011); U.S. Const. amend. VI; N.J. Const.
    art. I, ¶ 10. The federal and state constitutional provisions "express a clear
    preference for the taking of testimony subject to cross-examination." Cabbell,
    207 N.J. at 328.
    The Confrontation Clause provides a defendant with "the opportunity to
    cross-examine and impeach the State's witnesses." State v. Williams, 
    184 N.J. 432
    , 443 (2005); see also State v. Budis, 
    125 N.J. 519
    , 530-31 (1991) ("Among
    the primary interests protected by the right of confrontation are the opportunity
    for defendants to face their accusers and to cross-examine the state's
    witnesses."). The right to confront and cross-examine accusing witnesses is
    "among the minimum essentials of a fair trial." Budis, 125 N.J.at 531 (quoting
    Chambers v. Mississippi, 
    410 U.S. 284
    , 294-95 (1973)). Although trial courts
    have wide latitude to impose reasonable limits on cross-examination, the "denial
    A-1237-18T2
    15
    or significant diminution [of cross-examination] calls into question the ultimate
    integrity of the fact-finding process." Id. at 532. The Confrontation Clause
    operates to prohibit a party from introducing testimonial hearsay "as a substitute
    for in-court testimony when a defendant has never been given the opportunity
    to cross-examine the witness." Cabbell, 207 N.J. at 329.
    "Testimonial" statements are statements "in which witnesses 'bear
    testimony' against the accused, and include certain statements that are the
    product of police interrogation." Ibid. (quoting Crawford v. Washington, 
    541 U.S. 36
    , 51 (2004)). "The [Confrontation] Clause does not bar admission of a
    statement so long as the [witness] is present at trial to defend or explain it."
    Crawford, 
    541 U.S. at 68
    . "However, if the witness is absent from trial, a
    testimonial statement is only admissible if that witness 'is unavailable, and only
    where the defendant has had a prior opportunity to cross-examine.'" Cabbell,
    207 N.J. at 329-30 (quoting Crawford, 
    541 U.S. at 59
    ).
    Our research disclosed only one New Jersey reported case, Burr, that
    addressed an issue similar to that raised by defendant here—that playing the
    recording after the witness was excused violated his Confrontation Clause
    rights. 392 N.J. Super 538. Burr involved the defendant's sexual abuse of a
    child, wherein the defendant similarly contested the State's admission of a video
    A-1237-18T2
    16
    statement during the testimony of a witness after the declarant-victim had
    already been excused. Id. at 565. There, as here, the court considered the
    defendant's argument that his right to confrontation was violated because the
    victim was only cross-examined on her in-court testimony, not on the contents
    of her out-of-court video statement recorded by law enforcement prior to trial.
    Id. at 566-69. In Burr, we concluded that the defendant's right to confrontation
    could not have been violated because the victim's out-of-court statement was
    entirely consistent with her in-court testimony. Id. at 568-69.
    Other state courts have considered the issue under similar circumstances
    and most have concluded that a defendant's Confrontation Clause rights were
    not violated.2 For example, in State v. Tompkins, 
    859 N.W.2d 631
     (Iowa 2015),
    2
    A minority of jurisdictions have held—as defendant urges here—that putting
    the defendant in a position where he must "call a child complainant to testif y
    'unfairly requires a defendant to choose between his right to cross-examine a
    complaining witness and his right to rely on the State's burden of proof in a
    criminal case.'" State v. Bates, 
    383 P.3d 529
    , 534 (Wash. Ct. App. 2016)
    (quoting Lowery v. Collins, 
    988 F.2d 1364
    , 1368 (5th Cir. 1993)). Under the
    minority approach, a violation of the Confrontation Clause is established where
    a defendant shows that "the State's presentation of evidence require [s a
    defendant] to forego cross-examination or to challenge [the victim's] allegations
    by calling [the victim] as a witness himself." Id. at 534; State v. Rohrich, 
    939 P.2d 697
     (Wash. 1997) (en banc) (holding that the Confrontation Clause
    "requires the State to elicit the damaging testimony from the witness so the
    defendant may cross-examine if he so chooses" and noting that "[t]he State's
    failure to adequately draw out testimony from [a witness] before admitting the
    A-1237-18T2
    17
    the court addressed almost the exact argument being made by defendant, but in
    the context of a defendant arguing he could not cross-examine a witness about
    a prior out-of-court statement because the prosecutor did not ask any questions
    on direct about the earlier statement. Id. at 639-40. Moreover, the defendant
    claimed "he could not recall [the witness] to confront her on her hearsay
    statements because he was placed in a constitutionally impermissible catch -22:
    forego either his Confrontation Clause rights or his right to have the State prove
    its case against him." Id. at 640.
    The Tompkins court disagreed with the defendant's contention and
    explained the following:
    We agree with [defendant] that the State's decision not
    to question [the witness] about the statements she made
    to [police], or the events surrounding the night in
    [witness's] hearsay puts the defendant in 'a constitutionally impermissible
    Catch-22' of calling the child for direct or waiving his confrontation rights"
    (quoting Lowery v. Collins, 
    996 F.2d 770
    , 772 (5th Cir. 1993))).
    In justifying this preference for in-court child witness testimony, the
    Rohrich court suggested that "nothing about child hearsay indicates the hearsay
    statement would be more reliable than an in-court declaration of the same
    accusation." Rohrich, 939 P.2d at 702. As noted above, our Supreme Court has
    suggested exactly the opposite. See D.R., 
    109 N.J. at 360
     (listing a number of
    reasons why a child's in-court testimony may be less reliable than a prior
    testimonial statement). Because of this distinction, and because our opinion in
    Burr supports the proposition that the Confrontation Clause is not per se violated
    as a result of this unique trial procedure so long as the child victim testifies and
    is subjected to cross-examination, we decline to follow the minority approach.
    A-1237-18T2
    18
    question, placed [defendant] in the unenviable position
    to weigh the advantages and disadvantages of cross-
    examining [the witness] during her initial testimony or
    calling her as a witness for the defense. However,
    [defendant]'s Confrontation Clause rights were not
    violated based on this choice. The choice whether and
    to what extent to cross-examine a witness always
    requires a cost-benefit analysis. But where the witness
    takes the stand and is available for cross-examination,
    the Confrontation Clause places no constraints on the
    use of the witness's prior testimonial hearsay statement.
    Crawford, 
    541 U.S. at
    59 n.9.
    [Ibid.]
    In reaching its conclusion that no violation occurred, the Tompkins court
    relied on the fact that the witness "was available for cross-examination" and
    remained an available witness had the defendant wished to recall her. 
    Ibid.
     The
    court also relied on the court's evidence rules, which provided for a trial court
    to allow cross-examination beyond the scope of direct in its discretion and, if an
    out-of-court statement was otherwise admitted, permitted the party against
    whom it was used to call the witness and question them as if under cross-
    examination. 
    Ibid.
     The court found further support in its canvass of court
    decisions from other jurisdictions wherein it concluded that "the majority of
    courts from other jurisdictions that have addressed this issue have reached
    similar conclusions." Id. at 640-41 (discussing sixteen opinions from state and
    federal courts).
    A-1237-18T2
    19
    In State v. Pollock, 
    284 P.3d 1222
     (Or. Ct. App. 2012), review denied,
    
    298 P.3d 30
     (Or. 2013), one of the cases cited by the Tompkins court, an
    appellate court in Oregon considered facts nearly identical to those presented in
    the case before us. 284 P.3d at 1222–23. There, after a three-year-old child
    victim told her mother details of her sexual assault without being prompted, the
    mother contacted police who conducted an interview with the child which was
    recorded on DVD. Ibid.
    At trial, the State called the victim—then five years old—who was not
    asked about the specific abuse but was asked whether she remembered making
    statements to the police and whether those statements were true, to both of which
    she answered in the affirmative. Id. at 1223. Defense counsel also questioned
    the victim briefly about whether she remembered making the statements in the
    DVD and whether she talked with her mother or police about the topics covered
    in the DVD—to which she again answered in the affirmative. Id. at 1223.
    After the witness was excused, the State called the victim's interviewer
    and offered the DVD of the interview into evidence. Ibid. The court permitted
    the State to play the DVD for the jury at the close of its case-in-chief over
    defendant's objections that his Confrontation Clause rights were being violated.
    Ibid.
    A-1237-18T2
    20
    On appeal, the defendant contended that he "did not have an adequate
    opportunity to cross-examine the victim about her out-of-court statements,
    because she was, in effect, 'unavailable' for cross-examination on the inculpatory
    evidence, due to the prosecutor's failure to have elicited that evidence directly
    from the victim before introducing the DVD." Id. at 1224. He further argued
    that, because the prosecutor did not elicit the testimony from the DVD on direct
    examination, "the prosecutor effectively placed on defendant the burd en to elicit
    the inculpatory testimony that he sought to impeach, a burden that he
    contend[ed] violated his right to confrontation." Ibid.
    The Pollock court found that no right to confrontation had been violated
    for a number of reasons: the victim had taken the stand and was subject to cross-
    examination, the defense had adequate opportunity to cross-examine the victim
    about her statements on the DVD because she affirmed and adopted her prior
    statements while on the stand, the defendant did cross-examine the victim, and
    the defendant chose not to recall the victim for cross-examination even though
    he could have after the prosecutor played the DVD.            Ibid.   Rejecting the
    defendant's confrontation argument, the Pollock court stated, "Although we
    agree . . . that the state's decision not to question the victim in detail about the
    statements . . . placed on defendant the burden to weigh the advantages and
    A-1237-18T2
    21
    disadvantages of cross-examining the victim specifically about her statements,
    we conclude that the [S]tate's tactical decision did not limit defendant's right to
    confrontation." Ibid.
    Here, like in Pollock, defendant had an opportunity to cross-examine the
    child-victim but he chose not to ask questions about her out-of-court statement
    even though he had a transcript of the videotaped statement.            Moreover,
    defendant was not prohibited under our Rules of Evidence from seeking
    permission to examine her about her out-of-court statement.          See N.J.R.E.
    611(b) ("The court may allow inquiry [on cross-examination] into additional
    matters as if on direct examination."). Nor was he prohibited from seeking to
    recall the victim as a witness after the tape was played. See N.J.R.E. 806 ("If
    the party against whom a hearsay statement has been admitted calls the declarant
    as a witness, that party is entitled to examine the declarant on the statement as
    if under cross-examination.").
    Defendant, for what was evidently strategic purposes, simply chose not to
    cross-examine the victim while knowing that the videotape would be played
    after she testified.    The simple fact that the victim's prior statement was
    inconsistent with her testimony on direct examination does not constitute a
    violation of defendant's confrontation rights where our Rules, like those in
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    22
    Tompkins and Pollock, provided defendant ample opportunity to address those
    inconsistencies during cross-examination or following the presentation of her
    video statement. See Crawford, 
    541 U.S. at
    59 n.9 (The [Confrontation] Clause
    does not bar admission of a statement so long as the declarant is present at trial
    to defend or explain it). What occurred here was not a violation of defendant's
    Confrontation Clause rights, but rather a strategic decision made by defendant
    to not address the victim's earlier statement.
    Under these circumstances we conclude from our de novo review of the
    evidence, see State v. Williams, 
    218 N.J. 576
    , 593-94 (2014), that the trial court
    did not err when it refused to dismiss the first count of the indictment as the
    victim's videotaped statement provided sufficient evidence to sustain
    defendant's conviction on that count. See State v. Tindell, 
    417 N.J. Super. 530
    ,
    549 (App. Div. 2011) (applying the same de novo standard of review to motions
    to dismiss under Rule 3:18-1 and Rule 3:18-2 to determine if there was sufficient
    evidence "such that a jury could properly find beyond a reasonable doubt that
    the defendant was guilty of the crime charged" (quoting State v. D.A., 
    191 N.J. 158
    , 163 (2007))); see also State v. Reyes, 
    50 N.J. 454
    , 458-59 (1967).
    Affirmed.
    A-1237-18T2
    23