NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Following a conditional guilty plea, defendant appeals from the March 14, 2013 amended judgment of conviction finding him guilty of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree luring a child, N.J.S.A. 2C:13-6. We affirm.

I.

Defendant was charged under Atlantic County Indictment No. 10-07-01682 with second-degree luring a child, N.J.S.A. 2C:13-6 (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1, 14-2a (Count Three); third-degree endangering the welfare of a child by sexual conduct, N.J.S.A. 2C:24-4a (Count Four); and fourth-degree endangering the welfare of a child by possession of child pornography, N.J.S.A. 2C:24-4b (Count Five).

We discern the following facts from the record. On April 30, 2010, L.P. ("Linda")1 was ten years old. That morning, she rode her bike to school alone. While on her way, she observed defendant hiding behind a tree. As she rode past, he stepped out and stopped her. After a brief conversation, Linda continued pedaling her bike toward school.

Defendant began to follow, jogging behind Linda's bicycle. Defendant asked her to follow him off the street because he "forgot something behind the house." Linda initially refused, but after defendant asked again, she agreed to follow him.

Once secluded, defendant pulled his pants down to his knees. He removed his penis, held it in both hands, and asked Linda, "[H]ave you ever seen this[?]" Defendant then pulled Linda's skirt down to her knees. Linda pulled her skirt back up and began to leave. Defendant asked her to promise to return the following morning. Linda refused, and left on her bicycle. Defendant again began to jog behind her, but then turned and fled.

Meanwhile, Det. John Hamilton, driving his personal vehicle to work, noticed defendant jogging behind Linda. As defendant ran back to his vehicle, Det. Hamilton identified himself and inquired into defendant's behavior. Defendant appeared extremely nervous, and explained that he had parked on the street because he was ill and needed to vomit and urinate. Lacking evidence or any report of a crime, Det. Hamilton chose not to detain defendant. Defendant left the scene in a silver sports utility vehicle ("SUV").

When Linda arrived at school, she recounted the incident to her friend, G.C. According to G.C., Linda "looked scared and... a little pale...." G.C. encouraged her to tell E.W., a school aide, about the attack. Together they approached E.W., and Linda repeated her account of the incident. E.W. then brought Linda to the principal, S.S., where Linda again recounted the incident. S.S. immediately contacted the police and Det. Hamilton responded to the school. Police transported Linda and her mother to the prosecutor's office, where Det. Luke Ireland interviewed Linda.

The police located defendant later that day and placed him under arrest, informing him that he was charged with sexual assault and advising him of his Miranda2 rights. At the police station, Det. Hamilton and Det. Ireland interviewed defendant. Det. Hamilton once again advised defendant of his Miranda rights, and defendant initialed a constitutional rights form verifying that he was advised of his rights. Defendant acknowledged that he could stop the interview at any time, and chose to proceed with his statement.

Defendant stated that he had been up all night, and parked his car because he was ill. Defendant said that he encountered Linda while trying to find a secluded location to vomit. After a brief conversation, defendant claimed that Linda followed him behind a house on her own initiative. Defendant initially denied taking out his penis. However, after further questioning and equivocation, defendant ultimately admitted:

Notably, defendant referenced lawyers at several points throughout the interview. However, defendant never directly requested representation or termination of the interview. Instead, Det. Hamilton repeatedly advised defendant of his rights, and defendant repeatedly asked to continue the interview without legal counsel. The following exchange is illustrative:

After admitting to having his penis out to urinate, defendant eventually stated he "probably [wanted] a lawyer," at which point Det. Hamilton ended the interview.

Police later performed a forensic search of defendant's computer pursuant to a search warrant, and discovered twelve images of child pornography. This discovery provided the basis for Count Five of the indictment.

Upon seeing defendant's picture in the newspaper, S.M. contacted police, and gave a statement. He related that he was familiar with defendant from his childhood, and his daily commute took him past the scene of the incident. Driving by the location where the incident occurred, in the afternoon during the week prior to April 30, 2010, S.M. observed "a silver or gray SUV" with defendant "sitting ... in the car." He added, "when I drove by it looked like ... it was [defendant,] but I... wasn't [one] hundred percent sure."

Prior to trial, defendant moved, in pertinent part, to dismiss Count Three, suppress testimony from C.G. and S.S. regarding Linda's prior statements, and exclude testimony from S.M. On December 21, 2011, the trial court issued an oral opinion denying defendant's motions.

Defendant next moved to suppress his statement to the police, and to sever Count Five. The State moved to admit N.J.R.E. 404(b) other crime evidence regarding a 2007 incident in Florida.3 According to the police report of that incident, defendant, while operating the same vehicle he drove in this case, observed a then twelve-year-old girl and her six-year-old sister, and waived them over to his SUV. The twelve-year-old, believing defendant was lost, approached the vehicle to give him directions.

Defendant began asking her personal questions, including what she was wearing under her clothes, and asked her to lift her skirt to expose herself from the waist down. When the girl refused, defendant told her to come closer to the vehicle so he could inspect a mark on her leg. As she neared, defendant removed a towel from his lap, exposing his genitalia, and quickly ejaculated into his lap. The girls then ran away.

The trial court issued an oral opinion on the outstanding motions on April 25, 2012. The court granted defendant's motion to sever Count Five without opposition, but denied his motion to suppress his statement to the police. Finally, as to defendant's prior incident, the trial court applied the four-prong test articulated in State v. Cofield, 127 N.J. 328 (1992), but concluded it was unable to evaluate the third prong, which requires clear and convincing evidence of the other crime, without an evidentiary hearing. Accordingly, the court provisionally admitted the evidence pending a preliminary hearing pursuant to N.J.R.E. 104(a).

On September 10, 2012, the first day of trial, defendant entered into a conditional guilty plea pursuant to Rule 3:9-3(f), reserving his right to appeal all pretrial motions. Defendant pled guilty to Count One, second-degree luring of a child, and Count Two, second-degree sexual assault. On February 22, 2013, the trial court sentenced defendant to the recommended aggregate sentence of seven years of incarceration, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. On March 14, 2013, the court amended the judgment of conviction to reflect that defendant was to serve his sentence in Avenel Adult Diagnostic and Treatment Center.

On appeal, defendant raises the following points:

II.

We first address defendant's arguments regarding dismissal of Counts two and three of the indictment. Grand jury indictments are presumed valid and will not be disturbed so long as "there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006); accord State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984).

The State's "sole evidential obligation" in a grand jury proceeding "is to present a prima facie case that the accused has committed a crime." State v. Hogan, 144 N.J. 216, 236 (1996). However, "in establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a `half-truth.'" Ibid. Thus, the State must also present any "evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Ibid.; accord In re State ex rel. A.D., 212 N.J. 200, 220 (2012).

Subsequent dismissal of an indictment rests within the trial court's discretion, and we will only disturb the court's decision for a clear abuse of discretion. Hogan, supra, 144 N.J. at 229. In particular, such an abuse occurs "where the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." State v. Salter, 425 N.J.Super. 504, 514 (App. Div. 2012) (alteration in original) (citation and internal quotations omitted).

A.

Defendant argues that Count Three, attempted aggravated sexual assault by "attempt to commit an act of penetration" upon Linda, should have been dismissed because he took no substantial step towards penetration. Additionally, defendant argues that the State failed to present exculpatory evidence by failing to emphasize that there had been no genital contact.

N.J.S.A. 2C:14-2a provides that:

In pertinent part, criminal attempt is defined as:

Conduct only constitutes a substantial step if "it is strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1b.

In State v. Davis, 390 N.J.Super. 573, 589-90 (App. Div.), certif. denied, 192 N.J. 599 (2007), the defendant conducted sexually explicit internet chats with a minor female, and arranged to meet with her in a relatively isolated location, but failed to appear at the meeting. We found that a jury could conclude the defendant's communications with the victim constituted a substantial step towards sexual assault. Id. at 590.

Here, the evidence indicates that defendant lured Linda to a secluded location, and exposed both of their genitalia. Far more than a substantial step, defendant was on the very cusp of committing the crime. Additionally, the trial court correctly found that the absence of genital contact was not clearly exculpatory evidence. Hogan, supra, 144 N.J. at 236-37. Specifically, this fact constitutes an absence of incriminating evidence, rather than affirmative exculpatory evidence, and we see no indication that the State misrepresented Linda's account.

Accordingly, the judge's denial of defendant's motion to dismiss Count Three of the indictment was not an abuse of discretion.

B.

Defendant also argues that the trial court should have dismissed Count Two, sexual assault, for lack of evidence. Defendant raises this issue for the first time on appeal. Accordingly, we apply the plain-error rule. R. 2:10-2. "Under that standard, `[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

N.J.S.A. 2C:14-2b provides that: "An actor is guilty of sexual assault if he [or she] commits an act of sexual contact with a victim who is less than [thirteen] years old and the actor is at least four years older than the victim." N.J.S.A. 2C:14-1d defines sexual contact as:

Here, the evidence indicates that defendant held his genitalia in both hands and intentionally displayed it to Linda. The grand jury could have reasonably inferred that defendant touched his own genitalia with intent to degrade or humiliate Linda, or to sexually arouse or gratify defendant. Moreover, defendant pulled Linda's skirt down to her knees. The grand jury also could have reasonably inferred that, when he pulled down Linda's skirt, he contacted Linda's intimate parts through her clothing.

Therefore, we perceive no plain error in the failure to dismiss Count Two of the indictment.

III.

We next turn to defendant's motion to suppress his statement to police. Reviewing a trial court's findings and decision on a motion to suppress, we "`uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007). However, when reviewing a Miranda motion, we supplement our ordinary standard of review with a "searching and critical" inspection to ensure constitutional rights have not been denied. State v. Patton, 362 N.J.Super. 16, 43 (App. Div.) (citations and internal quotations omitted), certif. denied, 178 N.J. 35 (2003). We give no deference to the court's rulings on questions of law, or to the application of legal standards to the facts found by the trial court. State v. Gandhi, 201 N.J. 161, 176 (2010); State v. Cleveland, 371 N.J.Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Confessions taken during custodial interrogation are only admissible if the police properly informed the suspect of his or her Miranda rights. Miranda, supra, 384 U.S. at 467-73, 86 S. Ct. at 1624-27, 16 L. Ed. 2d at 720-23. Thereafter, if the suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking[,] there can be no questioning." Id. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

References to a lawyer do not necessarily invoke a suspect's rights. See State v. Messino, 378 N.J.Super. 559, 573 (App. Div.), certif. denied, 185 N.J. 297 (2005). For example, questioning whether the police think the suspect needs a lawyer constitutes an ambiguous request for legal advice. Id. at 578. In the face of an ambiguous invocation, police need not halt the interview, but may, instead, "follow up by asking questions that are designed to clarify the meaning of those words[,]" and confirm that the suspect intentionally and voluntarily wishes to continue with the statement. State v. Alston, 204 N.J. 614, 623 (2011). In determining whether a suspect has invoked his or her rights, we view the statement in the totality of the circumstances. State v. Diaz-Bridges, 208 N.J. 544, 572 (2012).

Here, Det. Hamilton clearly informed defendant of his Miranda rights. Thereafter, during the interview, defendant never stated that he wished to terminate the interview. Each time he referenced a lawyer, Det. Hamilton reminded defendant of his rights and asked for clarification, and defendant repeatedly insisted that he wished to proceed without legal counsel. At the point when defendant stated that he "probably" wanted a lawyer, Det. Hamilton ended the interview. Moreover, the record of the 2007 incident in Florida indicates that defendant understands how to invoke his right to counsel, and his comments regarding past interviews indicate an understanding of the risks incurred in providing an uncounseled statement.

As defendant never asserted his right to counsel during the interview, despite repeated reminders and requests for clarification, the judge's denial of defendant's motion to suppress his statement to the police was not an abuse of discretion.

IV.

We now turn to the trial court's evidentiary rulings. We accord substantial deference to evidentiary rulings, and only reverse for clear error or abuse of discretion. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L. Ed. 2d 683 (2000).

A.

Defendant first argues that the trial court incorrectly admitted evidence of his 2007 incident in Florida. N.J.R.E. 404(b) provides:

Our Supreme Court has set forth the following criteria for admitting evidence of other crimes, wrongs, or acts, under N.J.R.E. 404(b):

The trial court's analysis under Cofield should only be disturbed if there is "`a clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).

Here, applying the Cofield test, the judge found, on the first prong, that

As to the second prong, the question of similarity and temporal proximity, the judge noted that although the Florida incident occurred two and one-half years prior, this delay was not overly long in relation to the similarities between the two incidents. Regarding the third prong, that the evidence of the previous incident must be clear and convincing, the judge stated he would need to hear directly from the witnesses outside of the presence of the jury to determine its sufficiency.

Addressing the fourth prong, the probative value of the evidence versus its apparent prejudice, the judge found that "[t]he probative value [was] extremely high in light of" defendant's "defense of lack of intent or mistake...." The judge acknowledged that "the evidence here is highly prejudicial" to defendant, but noted that it was the only evidence regarding defendant's intent. Weighing these factors, the judge provisionally granted the State's motion, subject to hearing the testimony of the Florida victims and the State satisfying its burden under the third prong.

"The fourth prong of the Cofield test is typically considered the most difficult to overcome." State v. Rose, 206 N.J. 141, 160 (2011). Unlike N.J.R.E. 403, which provides that relevant evidence is admissible unless its probative value "is substantially outweighed by the risk of undue prejudice[,]" Rose, supra, 206 N.J. at 161, the fourth Cofield prong only requires that the "probative value of the evidence must not be outweighed by its apparent prejudice[,]" Cofield, supra, 127 N.J. at 338 (citation and internal quotations omitted). Also, "`[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process [under the fourth prong] will tip in favor of exclusion.'" Rose, supra, 206 N.J. at 161 (first alteration in original) (quoting Barden, supra, 195 N.J. at 392). Here, however, the judge found no such less prejudicial evidence available:

Other-crimes evidence is "inherently prejudicial[,]" Gillispie, supra, 208 N.J. at 89, but the judge properly concluded that the probative value in this case is not outweighed by the apparent prejudicial effect. This is especially so considering defendant's defense of mistake or accident, and the lack of any other evidence available to the State on these issues. The judge properly withheld his final determination pending a hearing pursuant to N.J.R.E. 104(a), in order to determine if the evidence of the Florida offense was clear and convincing.

Because the trial court applied the appropriate evidentiary framework and carefully evaluated each prong of the Cofield test, the court did not commit "`a clear error of judgment'" or abuse its discretion by finding the evidence provisionally admissible. State v. Marrero, 148 N.J. 469, 483-84 (1997) (quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996)). Accordingly, we discern no basis to disturb the trial court's provisional grant of the State's motion to admit the 2007 incident pending a hearing pursuant to N.J.R.E. 104(a).

B.

Defendant argues that the trial court should not have admitted Linda's hearsay statements to G.C. under the N.J.R.E. 803(c)(2) excited-utterance exception. Hearsay is an out of court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). N.J.R.E. 803(c)(2) provides that hearsay statements are admissible if "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate."

Various factors bear on the declarant's opportunity to fabricate, including:

Although there are numerous factors, the essential issue "is the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness." State v. Cotto, 182 N.J. 316, 328 (2005) (citation and internal quotations omitted).

Here, there is no doubt that defendant's actions were shocking, startling, and stressful to Linda. The record indicates that Linda fled from defendant to her school, and spoke to G.C. shortly after arriving there. The record also indicates that Linda gave her account spontaneously and without prompting. G.C. noted that Linda "looked scared and ... a little pale...." Moreover, Linda's age and the embarrassing nature of the statement weigh against her opportunity to fabricate. We find that the record adequately supports the trial court's decision, and therefore discern no abuse of discretion.

Accordingly, we affirm the denial of defendant's motion to suppress G.C.'s testimony regarding Linda's hearsay statements.

C.

As to testimony from S.S., defendant argues that Linda's hearsay statements to S.S. were not a fresh complaint because Linda had already recounted the event to several other people, and because Linda would not have spoken to S.S. if G.C. had not encouraged her to do so.

Fresh complaints are admissible despite the hearsay rule because they demonstrate the victim's search for sympathy and guidance, negating "the inference that the victim was not sexually assaulted because of her [or his] silence." State v. Hill, 121 N.J. 150, 163 (1990). Thus, such statements are not admitted for the truth of the matter asserted. See State v. Williams, 377 N.J.Super. 130, 151 (App. Div.) ("`The purpose of the fresh-complaint rule is to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime.'" (quoting State v. Bethune, 121 N.J. 137, 146 (1990)), certif. denied, 185 N.J. 297 (2005).

To be admissible as a fresh complaint, "the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." Hill, supra, 121 N.J. at 163. However, we "recognize that children may be too frightened and embarrassed to talk about sexual abuse, and that it is therefore necessary to be flexible in applying `fresh complaint' guidelines to complaints of children who allegedly have been sexually abused." Bethune, supra, 121 N.J. at 144.

Here, the trial court admitted the fact of Linda's statements to S.S., but not the substance of the statements. Linda's confidence in S.S. was not cumulative to her hearsay statements to G.C. because, unlike G.C., S.S. was an authority figure sought out to provide support and guidance. Additionally, we see no evidence in the record that Linda was coerced into speaking with S.S., and any pressure from G.C. or E.W. fell within the added flexibility afforded when considering complaints by sexually abused children. Lastly, the court indicated that it would narrowly limit the admission to fit its non-hearsay purpose.

We therefore find no abuse of discretion, and affirm the court's denial of defendant's motion to suppress S.S.'s testimony concerning Linda's hearsay statements.

D.

Finally, we address defendant's arguments that the trial court should have suppressed S.M.'s testimony as irrelevant and unduly prejudicial. N.J.R.E. 401 defines relevance as "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of ... undue prejudice[.]" The trial court has broad discretion in evaluating the risk of undue prejudice, and a decision pursuant to N.J.R.E. 403 "will not be overturned on appeal unless it `was so wide off the mark that a manifest denial of justice resulted.'" Toto v. Princeton Twp., 404 N.J.Super. 604, 620 (App. Div. 2009) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

As the trial court noted, defendant's statement to the police implicated a defense of mistake or accident. Defendant's prior presence in the neighborhood, which was well outside of his normal territory, strongly contradicts his account that he pulled over simply because he was sick. Any doubt in S.M.'s identification of defendant fell within the jury's province in evaluating the weight and credibility of the evidence. Moreover, defendant fails to identify any undue prejudice that exceeds the ordinary prejudicial value of adverse evidence. See Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 317 (1995) ("We would ill-serve the cause of truth and justice if we were to exclude relevant and credible evidence only because it might help one side and adversely affect the other.")

Accordingly, we discern no abuse of discretion, and affirm the trial court's denial of defendant's motion to suppress S.M.'s testimony.

Affirmed.