State of New Jersey v. L.D.F.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2171-23 STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.D.F.,1 Defendant-Appellant. ______________________ Submitted September 14, 2026 – Decided October 13, 2026 Before Judges Sabatino and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 22-07-1614. Jennifer N. Sellitti, Public Defender, attorney for appellant (Michael Kenney, Assistant Deputy Public Defender, of counsel and on the briefs). Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Assistant Prosecutor, of counsel and on the brief). 1 We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9), (12). PER CURIAM After a jury trial, defendant L.D.F. appeals from convictions for multiple sexual assaults and endangering the welfare of a child. Defendant contends reversal is warranted because the trial court failed to sever charges involving three victims, the prosecutor committed misconduct during summation, and cumulative errors resulted in prejudice. He further argues the court imposed an improper sentence. Having reviewed the record, parties' arguments, and applicable law, we affirm in part, vacate in part, and remand for a limited resentencing under Torres.2 I. On April 21, 2022, defendant's half-sister, J.S., reported to a school social worker that defendant was sexually assaulting her at home. Defendant resided with J.S., his other half-sister, E.F., and his half-brother, W.S., as well as with his mother, M.F., and her partner, M.S. After J.S. reported defendant's sexual assaults, the social worker contacted her parents, the New Jersey Division of Child Protection and Permanency ("Division"), and the police. After an investigation into J.S.'s allegations began, E.F., and W.S. reported defendant had inappropriately touched them. On July 1, 2022, a grand 2 State v. Torres, 246 N.J. 246 , 272 (2021). A-2171-23 2 jury charged defendant with first-degree aggravated sexual assault (J.S.), N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault (J.S.), N.J.S.A. 2C:14-2(b) (count two); third-degree endangering the welfare of a child (J.S.), N.J.S.A. 2C:24-4(a)(1) (count three); third-degree aggravated criminal sexual contact (E.F.), N.J.S.A. 2C:14-3(a) (count four); third-degree endangering the welfare of a child (E.F.), N.J.S.A. 2C:24-4(a)(1) (count five); second-degree sexual assault (W.S.), N.J.S.A. 2C:14-2(b) (count six); and third- degree endangering the welfare of a child (W.S.), N.J.S.A. 2C:24-4(a)(1) (count seven). In June 2023, the court presided over a jury trial, which resulted in a mistrial. During that trial, E.F. revealed an allegation that defendant inappropriately touched her when they resided in New York, which was not charged in the indictment. Defendant moved for a mistrial based on the new testimony, which the court granted. On August 15, 2023, after the State moved to admit testimony regarding defendant's prior New York sexual assaults against J.S. and E.F., the court held an evidentiary hearing. Defendant opposed the admission of his alleged prior bad acts under N.J.R.E. 404(b). After the court analyzed the relevant factors A-2171-23 3 under State v. Cofield, 127 N.J. 328, 338 (1992), it denied the State's motion, finding the prior alleged sexual assaults inadmissible. In September 2023, the court presided over a seven-day jury trial. On September 12, 2023, C.R. testified that she met with J.S. in school on April 21, 2022, while working as an elementary school social worker. J.S. reported to C.R. that defendant had sexually assaulted her. C.R. recalled J.S. was "crying," "distress[ed]," and "emotional[]." J.S. shared with C.R. that defendant "had been inappropriately touching her for years," touched "various parts of her body, including her breast area, crotch area, [and] upper thighs," and "frequently" assaulted her. After J.S.'s disclosure, C.R. informed administration co-workers, J.S.'s parents, the Division, and the police about the allegations. Newark Police Department ("NPD") Officer Diego Jaramillo testified that on the same day J.S. disclosed the assaults to C.R., he responded to J.S.'s residence with another officer. Once there, they separately spoke with M.F. and M.S. Jaramillo then spoke with J.S. briefly and asked her to explain in "her own words what had occurred." After listening to J.S.'s account, he made the decision to contact the NPD's Special Victims Unit ("SVU"). Jaramillo did not ask J.S. for "more detail[s] regarding the allegations." A-2171-23 4 SVU Detective Valerie Sanchez testified that she initially spoke with M.F. after learning about J.S.'s allegations and thereafter contacted the Essex County Prosectors Office ("ECPO"). On April 22, 2022, J.S. was taken to Beth Israel Hospital for a forensic examination. Sanchez and ECPO SVU Detective Nassim Hamami responded to the hospital and conducted a consensual intercept between J.S. and defendant that was recorded.3 After J.S.'s conversation with defendant, Sanchez arrested defendant the same day. After defendant waived his Miranda4 rights, the officers conducted a video-recorded interview of defendant, which was played and translated for the jury.5 During the interview, defendant confessed to touching J.S. but maintained it was only "two or three times" and not "a continuous thing." Later in the interview, defendant specifically admitted feeling J.S.'s breasts under her shirt on a separate occasion and recalled promising her "two times" that he would 3 "Pursuant to N.J.S.A. 2A:156A-4(c) . . . , law enforcement officers may intercept and record a telephonic communication when a party to the conversation allows them to listen in on the phone call. Recordings made under this provision are known as 'consensual interceptions.'" State v. Barclay, 479 N.J. Super. 451 , 456 (App. Div. 2024). 4 Miranda v. Arizona, 384 U.S. 436 (1996). 5 The parties have stipulated to the accuracy of the transcript included in defendant's appendix for the purposes of this appeal. A-2171-23 5 stop. Defendant also recalled touching J.S. on the preceding Wednesday. He acknowledged "that, yes, [he] touched her" and described that he touched her vagina with "[j]ust [his one] finger," but maintained he "did not put [his] finger" inside. Regarding his other siblings, he explained he would play "roughhous[e]" with E.F. and joke with W.S., spanking his "butt" because it was "a little fat." Shakira Ellington, a forensic nurse examiner, testified that she examined J.S. on April 22, 2022. J.S. told Ellington that defendant "assaulted" her and had "touch[ed]" her "vagina" two days earlier. Ellington explained the criteria for performing a forensic examination, including that the "incident has to happen within five days." Ellington asked J.S. if there was any "post-incident [vaginal] activity," and J.S. recalled urinating and taking a "bath[]." Because J.S. was under the age of twelve, no internal vaginal swabs were taken, but a swab of "the outside of her genital area" and DNA buccal sample 6 were taken. Ellington did not observe any external vaginal injuries, and, using an "alternate light source," found no "saliva" or "semen" was detected. 6 A "[b]uccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual's mouth to collect some skin cells." State v. Gathers, 234 N.J. 208 , 215 n.2 (2018) (quoting Maryland v. King, 569 U.S. 435, 444 (2013)). A-2171-23 6 Alexandra Mascitelli, a forensic scientist with the New Jersey State Police Office of Forensic Sciences ("OFS"), testified that she worked in the Serology Unit and had received J.S.'s "sexual-assault kit," which contained the "external- genital swabs" and DNA reference. After conducting an "acid phosphatase" test, which is intended to reveal an "enzyme present" in "high levels in semen," Mascitelli observed the sample tested detected no semen. Thereafter, she sent a sample taken from J.S. to the OFS DNA laboratory. Katharine Meakim, a forensic scientist with OFS's DNA unit, testified about DNA. She explained that J.S.'s genital swab sample was tested and detected no male DNA. Karen Zambrano, an agent with ECPO, testified about her special training in conducting forensic interviews of children. She recalled her video-recorded interview of J.S. on April 22, 2022, before J.S. went to the hospital. The State introduced the recorded statement that was played for the jury under the tender years exception, N.J.R.E. 803(c)(27). During Zambrano's interview, J.S. revealed defendant touched her inappropriately before he moved to New York. After defendant moved back into the residence, about "a week" prior, J.S. disclosed he "started touch[ing]" her again. She recalled "three times," and disclosed that "on Wednesday," April A-2171-23 7 20, 2022, defendant "kept touching [her] everywhere" and "tried to put his . . . private part . . . in [her] body." J.S. recalled that defendant kissed her neck and touched her: "breast," "upper thighs," the "skin and the inside" of her private part "[u]nderneath [her] underwear," and the "inside . . . private part" with "[o]ne finger." J.S. also recounted that when she was about "eight" years of age, after defendant had moved in with them, he "would use his private part to . . . lean against [her] . . . bottom and [her] private part." She described defendant's action, explaining it involved "just moving his body, like . . . against [her] private part and [her] bottom" but "never in [it]." She explained that defendant would start the assaults by hugging her, at which point she "knew what was going to happen." She detailed that defendant once "grabbed [her] hand and made [her] touch his private part" on top of his underwear and that he kissed her stomach. M.F. testified that she was from Mexico and had given birth to defendant there. She came to the United States in 2003 or 2004 for work. Defendant remained in Mexico with M.F.'s parents until he emigrated at fourteen years of age to live with her, M.S., E.F., W.S., and J.S. in New York. In 2017, M.F. moved without M.S. to a three-bedroom apartment in New Jersey with all four children. At first, defendant and W.S. shared a bedroom, J.S. and E.F. shared a A-2171-23 8 bedroom, and M.F. had a bedroom. Later, M.S. moved into the residence. Approximately four years later, defendant moved out of the house to live independently in New York for almost a year. Because of rental difficulties, M.F. recalled defendant moved back in with her. About "a week" after defendant moved back, M.F. recalled getting a call from J.S.'s school and learning that defendant had allegedly sexually assaulted J.S. On cross-examination, M.F. confirmed defendant was only twelve months old when she left him in Mexico and she had immediately began working in New York from "morning to night." She confirmed defendant had attempted suicide before he returned to live with her in New Jersey. After the school notified M.F. about J.S.'s assault allegations, an investigation ensued and she learned E.F. and W.S. also alleged defendant touched them inappropriately. M.F. remained in contact with defendant since learning about the allegations. Detective Hamami testified he was assigned to investigate the allegations. On April 22, 2022, he asked the family to come to the ECPO. Hamami participated in J.S.'s interview and spoke with E.F., who revealed defendant had inappropriately touched her. Hamami recalled determining with Zambrano that, with M.F.'s consent, J.S. should attempt a "consensual intercept . . . recorded phone call" with defendant. Hamami testified that he went to the hospital to see A-2171-23 9 J.S., and she agreed to initiate the phone call. After the phone call, given defendant's admissions, Hamami recalled defendant was arrested. He and Sanchez interviewed defendant and his statement was recorded. M.S. testified he was M.F.'s partner and that they had three children, E.F., W.S., and J.S. M.S. first met defendant when he moved from Mexico to live with them. M.S. had no idea defendant was assaulting J.S. and learned of the allegation when the school called. During the trial, E.F. testified that she was seventeen years old and in college. She recalled that defendant would touch her in ways she "did not like" when they lived together. Specifically, she recounted defendant touched her breasts over and under her clothing. He would "grab" her breasts with one hand using "[a]ll . . . his fingers" when they were "play fighting." She relayed that when defendant grabbed her breasts, she would "kick[] him" and not "play" anymore. She maintained it happened "less than ten" times and that she never told her mother. E.F. asserted defendant never touched her anywhere else and she never touched him. Regarding her disclosure, E.F. stated that she reported the allegations at sixteen years old and "could[ not] lie in the interrogation room." On cross-examination, E.F. confirmed that she would "play fight" with defendant. Further, she believed they "did[ not] want to hurt each other." A-2171-23 10 W.S. testified that defendant was his older brother. W.S. explained he was in eighth grade and thirteen years old. He recalled that when defendant resided with their family, defendant would "play[] around," "twice" touched his "bottom," and the touching was only over clothing. W.S. observed on one occasion defendant was in bed with J.S. under the covers, which caused W.S. to feel "confused." J.S. testified she was twelve years old and that defendant used to live with her and their family. She loved defendant and they had nicknames for each other. J.S. recounted that defendant touched her "private parts" with his hands in the bedroom she shared with her siblings. She described her private part as the "front side" of the bottom half of her body. J.S. stated that defendant touched her inappropriately more than ten times and she would consistently tell him to stop. Regarding the physical touching, J.S. testified defendant would use "one" finger to touch the skin of her private part. She specified that when they were in bed, defendant would go under her clothes, and that typically she would "wear shorts" and "underwear." After the incidents, she would not tell anyone. J.S. maintained defendant used one hand to touch her private part and another to simultaneously touch her breasts. Regarding the type of touch, she stated that A-2171-23 11 he would grab her breasts hard. She described feeling angry, insecure, and scared. J.S. recalled feeling relieved when defendant moved out of the house to New York and scared once he moved back. J.S. testified that defendant lived in the home for about a week before he resumed "touching [her] . . . private parts again." Defendant touched her breasts and the skin of her private part without going "inside." J.S. was so upset by the assaults that she "spoke out about it" at school. J.S. recalled bathing between defendant's last touching and her forensic examination. J.S. testified about the consensual intercept conversation, which was played for the jury. During the conversation, defendant apologized to J.S. and promised he would "not return to do anything to [her]." After the State rested its case, defendant moved to dismiss the charges in the indictment pursuant to Rule 3:18-1 and Reyes.7 Defense counsel argued dismissal was appropriate because of the State's wording of the different counts regarding E.F., W.S., and J.S. Defense counsel asserted the charges related to E.F. should be dismissed because the State failed to introduce evidence to support the allegations. Similarly, defense counsel argued the charges relating to W.S. warranted dismissal because no facts and permissive inferences 7 State v. Reyes, 50 N.J. 454 (1967). A-2171-23 12 sufficiently supported the elements of each count. She specifically argued that "[e]ach of these victims is individual . . . with individual allegations." The court granted defendant's motion to dismiss counts six and seven as to W.S. because "[no] reasonable jury could . . . find . . . defendant guilty of the charge[s] beyond a reasonable doubt." It reasoned that W.S. had only testified that defendant was "playing around at the time" when he touched W.S.'s bottom twice. The court denied defendant's motion to dismiss the other counts. During summation, defense counsel challenged J.S.'s credibility by referencing inconsistencies in her testimony, E.F.'s testimony, and other witnesses' testimony. Defense counsel stated, "[W]e know, according to [E.F.], that there[ was] some type of family meeting to discuss the allegations" after J.S. reported defendant's assaults and police went to the family home. Additionally, defense counsel argued E.F. testified that she and W.S. "were in the home . . . after the school had contacted them about [J.S.]." She argued J.S.'s testimony was potentially inconsistent because she was "spoken to by so many people . . . with so many different agendas" and "everyone else [wa]s putting [in] their two cents." Regarding the DNA evidence, defense counsel asserted defendant's and J.S.'s clothing were "not collect[ed]" and "test[ed] for semen or bodily fluids." A-2171-23 13 The prosecutor in summation highlighted that J.S. was only twelve years old at the time of trial, described the courtroom environment, and noted J.S. testified her brother committed multiple sexual assaults against her. He referenced J.S.'s testimony that the assaults began when she was eight years old and continued until she was eleven years old, requesting the jury not to lose sight of the fact that she is a child and not to expect her "to remember every little detail." The prosecutor remarked, "Imagine you, yourselves, as fully grown developed adults having to get up on a witness stand in a courtroom full of strangers and talk" about "your vagina or how your brother put his fingers in your vagina." He also noted the differences between J.S.'s "child-friendly environment," in which she gave her statements to Zambrano and C.R., and the courtroom setting full of strangers. Additionally, he highlighted testimony regarding the DNA evidence, indicating there were potential reasons no DNA was recovered. In conclusion, the prosecutor requested the jury consider "all of the evidence that . . . [was] presented " and "to return the only just verdict in this case," which he repeated was to "return a verdict of guilty on all counts." On September 22, 2023, the jury found defendant guilty of counts one, two, and three, relating to J.S. Defendant was acquitted of counts four and five, relating to E.F. A-2171-23 14 On February 9, 2024, after argument, the court sentenced defendant. Defense counsel relied on the sentencing memorandum submitted and requested the court apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct), factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant's lack of criminal history), and factor fourteen, N.J.S.A. 2C:44-1(b)(14) (defendant was under [twenty-six] years of age at the time of the commission of the offense). Further, defense counsel asserted no aggravating factors applied. Additionally, defense counsel argued count three should merge, to which the State consented. The State argued the court should sentence defendant to above the minimum sentence of twenty-five years. The State requested a thirty-year term of imprisonment on count one and a seven-year term on count two, to be served consecutively. Regarding the relevant aggravating factors, the State asserted the court should apply aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense), aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of harm inflicted on the victim, including whether or not defendant knew the victim of the offense was particularly vulnerable), aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will A-2171-23 15 commit another offense), 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). In its oral sentencing decision, the court began by acknowledging that under the Jessica Lunsford Act ("JLA"), N.J.S.A. 2C:14-2, the Legislature enhanced the sentencing exposure of defendants convicted of aggravated sexual assault of a child under thirteen years old by prescribing a mandatory minimum term of twenty-five years of parole ineligibility. The court explained under the JLA that defendant was subject on count one to a sentence "between [twenty- five] years and life imprisonment" and "a minimum . . . [twenty-five]-year period of parole ineligibility." The court then addressed the aggravating factors, finding aggravating factor three applied because there was a risk defendant would "commit another offense." It determined aggravating factor nine applied as there was a need to deter others. The court highlighted defendant committed separate assaults "on various dates, between February 2019 and April 20 [, 2022]." Further, the court noted the "repeated nature of the assaults [J.S.] endured" and defendant's admission during the recorded interview to committing multiple offenses. Regarding the mitigating factors, the court was unpersuaded by defendant's argument that factor four applied because of his suicidal ideations, A-2171-23 16 determining they were not what "led [him] to committing these offenses." The court specifically commented that any such ideations had "nothing to do with the acts that occurred . . . before he moved out." The court found mitigating factors seven and fourteen applied. The court then determined based on the weight given to the aggravating factors that the mitigating factors were outweighed. In addressing whether to impose consecutive sentences, the court addressed the factors established in State v. Yarbough, 100 N.J. 627, 644 (1985). The court emphasized defendant was convicted of crimes that "were not predominantly dependent on each other" because they "involve[d] separate sexual acts and/or threats of harm." The court noted that "[d]uring his Mirandized statement and in his Avenel evaluation[,] defendant admitted to touching the victim" while maintaining it was not for sexual gratification. The court found consecutive sentences appropriate because there were no free crimes and defendant committed multiple assaults over a period of time. After considering the Yarbough factors, the court addressed the appropriateness of defendant's sentence. The court considered the term of defendant's sentence and acknowledged that defendant's family "love[d]" him, want[ed] "mercy" in his sentence, and ask[ed] for "kindness." Further, the court A-2171-23 17 noted that J.S. expressed a hope to "reunite with [defendant] as a family" after the completion of his sentence and that any sentence imposed would cause the family more pain. On count one, the court sentenced defendant to a thirty-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Regarding count two, the court sentenced defendant to a consecutive seven-year term of imprisonment, subject to NERA. Defendant was ordered to comply with Megan's Law, N.J.S.A. 2C:7-2, and parole supervision for life, N.J.S.A. 2C:43- 6.4. Additionally, the court merged count three into count one. This appeal followed. On appeal, defendant raises the following points: POINT I THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SEVER THE CHARGES PERTAINING TO EACH ALLEGED VICTIM. POINT II DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE NUMEROUS INAPPROPRIATE STATEMENTS MADE BY THE PROSECUTOR DURING SUMMATION. A-2171-23 18 A. New Jersey courts hold prosecutors to high ethical standards, particularly during summation. B. The prosecutor improperly argued facts unsupported by the evidence presented at trial to attempt to explain the lack of DNA evidence. C. The prosecutor impermissibly bolstered J.S.'s credibility by making sweeping remarks about the reliability of child witnesses without support in the record. D. The prosecutor asked the jury to imagine themselves as the victim, inappropriately inflaming the passions of the jury. E. The prosecutor's remark that the only just verdict is a guilty verdict inappropriately inflamed the jury and implied that an acquittal would violate their oath. POINT III THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL. POINT IV THE COURT MADE MULTIPLE ERRORS SENTENCING [DEFENDANT] WHICH NECESSITATE A REMAND FOR RESENTENCING. A. The court should have merged [c]ount [one] with [c]ount [two.] B. The court erred in its Yarbough analysis and failed to apply Torres before imposing consecutive sentences. A-2171-23 19 C. The court erred in weighing the aggravating and mitigating factors which resulted in an excessive sentence. A. Severance. Defendant first contends that the trial court erred in failing, on its own initiative, to "sever the charges related to each of the three alleged victims." He alleges the court committed plain error, requiring reversal of his convictions. After a review of the record, we disagree. An appellate court will defer to a trial court's decision whether to sever counts in an indictment. State v. Sterling, 215 N.J. 65, 73 (2013). When a party moves to sever, the decision to grant or deny the motion rests within the "sound discretion" of the trial court. State v. Sanchez, 143 N.J. 273, 283 (1996) (quoting State v. Brown, 118 N.J. 595, 603 (1990)). A trial court's severance decision will not be disturbed, "absent an abuse of discretion." State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Pursuant to Rule 3:7-6, two or more offenses may be tried in the same proceeding "if the offenses charged are [(1)] of the same or similar character "; (2) "are based on the same act or transaction"; or (3) are based "on two or more acts or transactions [either] [(a)] connected together or [(b)] constituting parts of a common scheme or plan." However, the Rule also provides that relief "shall A-2171-23 20 be afforded" if prejudice from joinder is demonstrated. Ibid. Rule 3:15-2(b) prescribes that if "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation[,] the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." As the Supreme Court explained in Sterling, The relief afforded by Rule 3:15-2(b) addresses the inherent "danger[,] when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all." [ 215 N.J. at 73 (quoting State v. Pitts, 116 N.J. 580, 601 (1989)).] "The test for assessing prejudice is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Id. at 73 (alteration in original) (quoting Chenique-Puey, 145 N.J. at 341 ). "'If the evidence would be admissible at both trials, then the trial court may consolidate the charges because "a defendant will not suffer any more prejudice in a joint trial than he would in separate trials."'" State v. Smith, 471 N.J. Super. 548 , 567 (App. Div. 2022) (emphasis in original) (quoting Chenique-Puey, 145 N.J. at A-2171-23 21 341). Thus, the requirements of N.J.R.E. 404(b) "must be met . . . and the evidence of other crimes or bad acts must be 'relevant to prove a fact genuinely in dispute and the evidence is necessary as proof of the disputed issue[.]'" Sterling, 215 N.J. at 73 (quoting State v. Darby, 174 N.J. 509, 518 (2002)). "[E]vidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition[,]" N.J.R.E. 404(b)(1), but it "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity[,] or absence of mistake or accident," N.J.R.E. 404(b)(2). The Supreme Court in Cofield elucidated that in order for evidence to be admissible under N.J.R.E. 404(b), it must satisfy the following four-prong test: (1) The evidence of the other crime must be admissible as relevant to a material issue; (2) It must be similar in kind and reasonably close in time to the offense charged; 8 (3) The evidence of the other crime must be clear and convincing; and 8 Note that the Supreme Court has held that the second prong of the Cofield formulation need not be applied in every case, unless the facts of the case replicate the circumstances of Cofield itself. State v. Green, 236 N.J. 71, 83 (2018); see also State v. Williams, 190 N.J. 114, 131-34 (2007). A-2171-23 22 (4) The probative value of the evidence must not be outweighed by its apparent prejudice. [ 127 N.J. at 338 .] In Smith we reversed the trial court's denial of the defendant's motion to sever sexual offenses counts related to his daughter and girlfriend's daughter because the trial court failed to explain "why the alleged touching of [his girlfriend's daughter]'s vagina was relevant to prove a material fact in dispute regarding [his daughter]'s allegations" under N.J.R.E. 404(b). 471 N.J. Super. at 554-55, 569. We noted defendant's intent and the absence of mistake were not issues in the case. Id. at 569. We also held that "trying the[] two sets of allegations together before a single jury clearly implied defendant had 'a propensity to commit crimes, and'" was therefore more likely to commit the crimes for which he was on trial, which "clearly had the capacity to bring about an unjust result." Id. at 574 (quoting State v. Willis, 225 N.J. 85, 97 (2016)). In the present case, defendant argues that, like in Smith, severance was warranted because W.S.'s and E.F.'s allegations are not relevant to a material fact in dispute regarding J.S.'s allegations. First, it bears noting that unlike the defendant in Smith, defendant here did not request severance. Additionally, the record demonstrates defendant in fact argued a lack of intent regarding E.F., as he maintained the touching was only "play[-]fighting" and "there was no sexual A-2171-23 23 component . . . whatsoever." Defendant also successfully moved to dismiss the charges related to W.S., having argued the evidence failed to support the touching was sexual in nature. Regarding his physical contact with J.S., defendant argued at trial that his physical contact with her was not "sexual contact." Thus, unlike Smith, the sexual assault evidence related to the three siblings was material to addressing defendant's intent and the absence of mistake. Stated another way, defendant did not contest touching his siblings but disputed his intent and the extent and manner of his physical touching. Thus, the admission of evidence negating defendant's testimony in contrast to that of his siblings was relevant and material to the issues in dispute, demonstrating intent and absence of mistake. See State v. Seddens, 484 N.J. Super. 284 , 303 (App. Div. 2026) (providing that prior bad acts evidence under N.J.R.E. 404(b)(2) may be admitted to demonstrate "intent" or "absence of mistake . . . when such matters are relevant to a material issue in dispute"), certif. denied, ___ N.J. ___ (2026). We, therefore, are not convinced that there is plain error because the court did not sua sponte sever the charges. Moreover, after a review of the record, we conclude that if severance was required, there was no unjust result to defendant because ample other evidence supports his convictions. "Where the trial court errs by improperly joining A-2171-23 24 offenses, the reviewing court must assess whether the error 'led to an unjust result.'" Smith, 471 N.J. Super. at 573 (quoting Sterling, 215 N.J. at 101 ). "The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Ibid. (quoting Sterling, 215 N.J. at 101 ). "This requires 'an independent analysis of the quality of the evidence of defendant's guilt on a conviction-by-conviction basis.'" Ibid. (quoting Sterling, 215 N.J. at 102 ). After reviewing the record, we are convinced that if severance should have been afforded, there was no miscarriage of justice. Additionally, we agree with the State's argument in opposition that the record, including defense counsel's summation, supports a determination that defendant strategically wanted the offenses tried together. Defendant argued his siblings manufactured the allegations and the fictions were created together with the input of others. Notably, defense counsel successfully objected to other N.J.R.E. 404(b) evidence. Specifically, he successfully objected during the first trial to other bad acts evidence the State had introduced and later objected to the admission of the uncharged evidence regarding other assaults against his sisters, "contend[ing] that the State ha[d] failed to establish prongs one, three[,] and four of Cofield." This procedural history of defendant's successfully barring the A-2171-23 25 State from introducing other bad acts evidence of prior sexual assaults under N.J.R.E. 404(b) supports the conclusion that he proceeded to trial on all of the indicted charges and did not seek severance for tactical and strategic reasons. Moreover, defendant's decision not to move for severance deprived the court of the opportunity to address the issues and create a record of the arguments presented. Regarding defendant's failure to raise severance before the court, we observe the Supreme Court has recognized, in State v. Buonadonna, that defendants may strategically decide not to seek severance "as a tactic to build reversible error into the case at its outset," resulting in "defendants . . . get[ting] a 'free ride' to see if they would be initially acquitted." 122 N.J. 22, 44 (1991). Relevantly, had defendant moved for severance, the court would have had an opportunity to create a record regarding the related issues. For these reasons, we conclude the court did not err in failing on its own initiative to order severance. B. Summation. Defendant next argues that the prosecutor committed misconduct in summation because he inappropriately stated a conclusion about DNA evidence, "impermissibly bolstered J.S.'s testimony," improperly "asked the jury to place A-2171-23 26 themselves in" J.S.'s position, and stated the "only just verdict" was a guilty verdict. Defendant maintains reversal is warranted as these statements deprived him of a fair trial. As there was no objection to the prosecutor's summation at trial, we review the prosecutor's comments in the overall context of the trial to examine if they constitute plain error. Generally, "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Williams, 471 N.J. Super. 34 , 43 (App. Div. 2022) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). "A prosecutor must 'conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction,' ensuring that at all times [their] 'remarks and actions [are] consistent with [their] duty to ensure that justice is achieved.'" State v. Jackson, 211 N.J. 394, 408 (2012) (first and third alterations in original) (quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). Not every prosecutorial misstep requires a new trial. State v. Garcia, 245 N.J. 412 , 436 (2021). "[P]rosecutors are expected to make 'vigorous and forceful' presentations during opening statements and summations." State v. Butler, 263 N.J. 2 , 22 (2026) (quoting State v. Williams, 244 N.J. 592 , 607 A-2171-23 27 (2021)). However, prosecutors "may not make comments that a jury must 'send a message' to the community and to the defendant." State v. Hawk, 327 N.J. Super. 276, 283 (App. Div. 2000) (quoting State v. Rose, 112 N.J. 454, 523 (1988)). "Only when the prosecutor's conduct in summation so 'substantially prejudice[s] the defendant's fundamental right to have the jury fairly evaluate the merits of his defense' must a court reverse a conviction and grant a new trial." Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)). In other words, the prosecutor's conduct must be "so egregious that it deprived the defendant of a fair trial." Frost, 158 N.J. at 83 . Defendant contends the prosecutor improperly stated unsupported DNA conclusions to the jury. In addressing his arguments, a review of the prosecutor's comments in context is necessary. Defense counsel first argued in summation that the State failed to properly investigate and complete sufficient DNA testing. The prosecutor responded, conceding that there was "no male DNA detected" from J.S.'s sample. He thereafter stated that "[t]he only allegation of penetration" was with defendant's "finger," and "semen does not come out of a finger." Additionally, he noted "it had been two days" since the assault and that J.S. had "washed herself" and "used the bathroom." The A-2171-23 28 prosecutor argued "[a]ny sort of DNA at that point, using your common sense, would be gone, especially given the allegations in this case." Reviewing the prosecutor's DNA statements in context, we discern no "improperly argued [DNA] facts" or conclusions. After defense counsel raised the absence of DNA and tested "bodily fluids," the prosecutor permissibly responded to the assertions and noted that the OFS "only tested for semen" and J.S. alleged defendant penetrated her with his finger. Ellington had testified to only swabbing "the outside of [J.S.'s] genital area." Also, J.S. recalled bathing after the incident, it was unrefuted the forensic exam was conducted two days later, and J.S. never alleged defendant ejaculated. Thus, the prosecutor fairly commented on the trial testimony and the suggestion that jurors use their common sense was not "substantially prejudicial" or unsupported. A prosecutor "in . . . summation may suggest legitimate inferences to be drawn from the record." State v. Harris, 156 N.J. 122, 194 (1998). We conclude his remarks were not "'"clearly and unmistakably improper," and [did not] substantially prejudice[] defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). A-2171-23 29 We next address defendant's argument that the prosecutor impermissibly bolstered J.S.'s testimony by making unsupported claims about the reliability of children in recollecting events. After defense counsel attacked J.S.'s credibility based on inconsistencies, the prosecutor addressed defense counsel's "point[s]," stating that J.S. was eleven years old and it was unrealistic to expect her "to be robotic and to simply spit out the same information every single time." The prosecutor further stated, "you know that [children's] stories change, details change. That doesn't mean they[ are] lying." We disagree with defendant's assertion that "a qualified expert in child behavior or psychology" was required to support the argument regarding children's recollections and that the prosecutor "baselessly argued that children are inherently incapable of telling a consistent story yet still essentially credible." Defendant exaggerates the prosecutor's comment. Further, "[a] prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses" and "is permitted" to respond. Hawk, 327 N.J. Super. at 284 . After reviewing the comments, we reject defendant's arguments that the prosecutor improperly "bolstered J.S.'s credibility" and "deprived [him] of a fair trial." A-2171-23 30 Defendant further contends the prosecutor committed misconduct by suggesting to the jurors that they place themselves in J.S.'s position of having to testify about being sexually assaulted and that only a guilty verdict is a "just verdict." Defendant posits the prosecutor strayed from discussing the evidence and instead "provoked" sympathy and "inflamed" the jury. We agree the prosecutor should not have told jurors to imagine themselves as testifying sexual assault victims because such a statement fails to focus on the evidence and instead seeks to invoke emotion. However, the unobjected to comment was not "'so egregious that it deprived the defendant of a fair trial.'" State v. Kane, 449 N.J. Super. 119, 140 (App. Div. 2017) (quoting Frost, 158 N.J. at 83 ). Additionally, the prosecutor's use of the words, "only just verdict," does not warrant reversal given "we interpret the accusatory elements and the last thought expressed[] as merely an inartful pledge to the jury that the evidence at the end of the trial would demonstrate the guilt of defendant." State v. Roman, 382 N.J. Super. 44, 58 (App. Div. 2005). We, therefore, conclude the prosecutor's statements made during summation do not warrant reversal. A-2171-23 31 C. Cumulative Error. Defendant next asserts that the cumulative errors committed deprived him of a fair trial. He asserts that when the errors are considered together, they render the "trial deficient, and a new trial is necessary." "Trials, particularly criminal trials, are not tidy things." State v. R.B., 183 N.J. 308, 333 (2005). "[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 333-34 . "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)). "An appellate court may reverse a trial court's judgment if the cumulative effect of a series of errors is so great as to deprive a defendant of a fair trial." Butler, 263 N.J. at 31-32 (quoting State v Burney, 255 N.J. 1 , 29 (2023)). "We do not focus our analysis on the number of mistakes but rather consider whether the errors together amount to an injustice." Id. at 32. "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)). Based on our review of the record, we conclude defendant's arguments are "[in]sufficient to A-2171-23 32 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). D. Sentence. Defendant contends several sentencing errors occurred. Defendant first argues the court erred in failing to merge count one and count two. He specifically argues "neither the indictment, jury charge, nor verdict sheet showed that the jury relied on distinct acts to convict [defendant] under [c]ounts one and [two]," and "the[] convictions should have merged." Additionally, he asserts that "in this case there is nothing in the record to show that the jury's convictions on [c]ounts [one] and [two] represented findings on two separate sexual acts." After a review of the record, we conclude there is no merit in these contentions. The grand jury indictment on count one charged defendant with first- degree aggravated sexual assault between February 2019 through April 20, 2022, and specifically charged defendant "insert[ed] his finger into [J.S.'s] vagina." On count two, the grand jury charged defendant with second-degree sexual assault between February 2019 through April 20, 2022, "by intentionally touching the victim's breasts, vagina, and buttocks, either directly or through clothing, with his hands, by intentionally touching the victim's vagina and A-2171-23 33 buttocks with his penis, through clothing, and by having the victim intentionally touch his penis, through clothing, with her hand, for purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying himself." The verdict sheet mirrored the alleged offenses. J.S. specifically testified defendant sexually assaulted her multiple times over a period of more than a year. She provided detailed testimony and statements regarding the April 20, 2022 assault and separately asserted facts supporting the prior assaults. The jury was permitted to consider all admissible evidence, including defendant's admissions during his statement and the phone conversation, which support the jury's verdict under count one that he penetrated J.S. with his finger. Additionally, he admitted to sexually assaulting J.S. on other occasions, corroborating J.S.'s testimony as to count two because he admitted touching her "intimate parts" "either directly or through clothing." Defendant next argues that the court erred "in weighing the aggravating and mitigating factors" and in "its Yarbough analysis." He contends the court placed undue weight on the aggravating factors, which resulted in the imposition of an increased sentence. He again asserts "the record does not support the conclusion that the jury found multiple separate acts had occurred." A-2171-23 34 An appellate court's standard of review of sentences is well-established and deferential. State v. Cuff, 239 N.J. 321 , 347 (2019). We will affirm a trial court's sentences 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)). Once a sentencing court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b), it "may impose a term within the permissible range for the offense." State v. Morente-Dubon, 474 N.J. Super. 197 , 208 (App. Div. 2022) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)); see also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record"). When sentencing a defendant for multiple offenses, "such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). A-2171-23 35 In Yarbough, our Supreme Court established "general sentencing guidelines" that a court must analyze when deciding whether to impose consecutive sentences. 100 N.J. at 643-44 . The Supreme Court explained that a sentencing court must consider the following factors: (1) there can be no free crimes in a system for which the punishment shall fit the crime; (2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision; (3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous; (4) there should be no double counting of aggravating factors; [and] A-2171-23 36 (5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; . . . . [Id. at 644.] "The Yarbough factors are qualitative, not quantitative; applying them involves more than merely counting the factors favoring each alternative outcome." Cuff, 239 N.J. at 348 (citing State v. Molina, 168 N.J. 436, 442-43 (2001)); State v. Carey, 168 N.J. 413, 427-28 (2001). A "sentencing court must explain its decision to impose concurrent or consecutive sentences in a given case." Cuff, 239 N.J. at 348. "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." State v. Miller, 205 N.J. 109, 129 (2011). An explanation of the "overall fairness" is necessary "to 'foster[] consistency in . . . sentencing in that arbitrary or irrational sentencing can be curtailed and, if necessary, corrected through appellate review.'" Torres, 246 N.J. at 272 (alterations in original) (quoting State v. Pierce, 188 N.J. 155, 166-67 (2006)). At sentencing, the court cogently reviewed and applied the aggravating and mitigating factors. The court provided sufficient reasons for applying aggravating factors three and nine. Further, the court explained it was placing A-2171-23 37 heavier weight on the aggravating factors, which resulted in the mitigating factors being outweighed. Defendant's assertion that the court placed "undue weight" on the aggravating factors is unsupported. The court also thoroughly addressed the Yarbough factors. It examined each Yarbough factor, noting there is no free crime. It detailed that J.S. had been assaulted on multiple separate and independent occasions and found defendant had sexually assaulted her "over a long period of time." The court was cognizant not to double count the elements of the conviction, aggravating factors, and Yarbough findings in reaching its decision to order consecutive terms of imprisonment. The court also recognized the effect the separate assaults had on J.S., noting her age and loss of innocence from the "horrific acts" against her. For these reasons, we discern no error in the court's imposition of consecutive sentences and the aggregate term of imprisonment as its findings are sufficiently supported. Finally, we address defendant's contention that the court failed to address the overall fairness of defendant's sentence under Torres. Our Supreme Court has stated, "the overall fairness of a sentence to be imposed serves to validate a court's decision by contextualizing the individual sentences' length, deterrent value, and incapacitation purpose." 246 N.J. at 271. While the court provided A-2171-23 38 sufficient reasons for imposing consecutive sentences, it did not expressly analyze the overall fairness of defendant's sentence. As the Supreme Court has stated, "sentencing is a holistic endeavor." Id. at 272. Because the overall fairness of the sentence was not addressed, we are constrained to remand for the court to provide "its reasons for concluding that a particular sentence is warranted." Torres, 246 N.J. at 268 (quoting State v. Miller, 108 N.J. 112, 122 (1987)). Affirmed in part and reversed and remanded in part. We do not retain jurisdiction. A-2171-23 39