NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant S.C.S. appeals his August 24, 2012 judgment of conviction, claiming that the trial court erred in informing the jury at his request of the penalties associated with first-degree, second-degree, and third-degree charges; that the jury should have been instructed on a voluntary intoxication defense; and that the court erred in sentencing defendant. We disagree and affirm.

I.

Defendant had two children, J.S. and S.S. At trial, J.S. testified as follows. Starting in 2008, when she was eleven, defendant began rubbing her vagina, breasts, and buttocks. Soon thereafter, defendant began having sexual intercourse with J.S. Defendant would have sex with J.S. approximately "three or four times a week." Defendant continued to violate J.S. as frequently when she was twelve and thirteen years old.

J.S. further testified that on October 5, 2010, when she could not remember where she put a lamp, defendant put a knife to her throat and said "he was going to cut [her] into pieces and throw them out the window." J.S. began to cry. Defendant gave her the knife and said "[j]ust kill me, call the cops." J.S. threatened to tell the police about defendant's sexual intercourse with her. Defendant told J.S. to "[g]o ahead."

On October 6, 2010, Officer Andrew McCrone was dispatched to investigate J.S.'s possible truancy from school. J.S. informed McCrone that she did not want to go to school. While driving J.S. to middle school, McCrone asked why she did not want to go to school. J.S. told McCrone that defendant had threatened her with a knife and that defendant tried to have sex with her and touched her inappropriately. McCrone immediately transported J.S. to the Juvenile Aid Bureau where she was interviewed by Detective Louis Mignone.

During the interview, J.S. disclosed the history of sexual abuse that she had suffered at the hands of defendant. J.S. told Detective Mignone that her father had sexual intercourse with her only when she was twelve years old. However, at trial she admitted that the first time defendant had sex with her was when she was eleven, and the last time defendant had sex with her was the day she gave her statement to Mignone, October 6, 2010. She said she lied to Mignone about the last time defendant had sex with her because she was ashamed.

After giving her statement, J.S. was transported to a hospital where a nurse found evidence of dried secretions on J.S.'s lower abdominal area and undergarments. The dried secretions from J.S.'s lower abdominal area later tested positive for semen, as did her underwear. Defendant was the source of the major DNA profile obtained from the dried secretions from J.S.'s lower abdominal area, and a likely contribution of the sperm on J.S.'s underwear.

Meanwhile, shortly after J.S. gave her statement, the police arrested defendant on October 6, 2010. Defendant gave a videotaped statement to Detective Mignone on October 7, 2010.2 Defendant admitted to having sexual intercourse with J.S. approximately thirty to forty times. Defendant further stated that the last time he had sexual intercourse with J.S. was the day before, on October 6. Defendant stated that after putting his penis in her vagina, he had ejaculated outside of her vagina "by [J.S.'s] legs," and that he tried to clean his semen off J.S. with toilet paper. Defendant further admitted to pointing a knife at J.S. and S.S. on one occasion when they did not clean their rooms.

Defendant was charged in a nineteen-count indictment. Counts one through five covered the period from February 2008 to February 2009, when J.S. was eleven years old. Counts six through ten covered the period from February 2009 to February 2010, when J.S. was twelve years old. Counts eleven through nineteen covered the period from February 2010 to October 2010, when J.S. was thirteen years old. Some charges were merged or dismissed before trial.

Following a four-day trial, the jury found defendant guilty of first-degree aggravated sexual assault by vaginal penetration on a victim less than thirteen-years old, N.J.S.A. 2C:14-2(a)(1) (counts one and six); first-degree aggravated assault by vaginal penetration on a victim thirteen-to-sixteen-years old to whom defendant was related, N.J.S.A. 2C:14-2(a)(2)(a) (count eleven); second-degree sexual assault by sexual contact, N.J.S.A. 2C:14-2(b) (counts two and seven); second-degree endangering the welfare of a child by sexual conduct, N.J.S.A. 2C:24-4(a)(1) (counts five, ten, and fifteen), and by putting a knife to her throat, N.J.S.A. 2C:24-4(a)(2) (count seventeen); and third-degree aggravated criminal sexual contact with a victim thirteen-to-sixteen-years old to whom defendant was related, N.J.S.A. 2C:14-3(a), N.J.S.A. 2C:14-2(a)(2)(a) (count twelve). The jury found defendant not guilty of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count sixteen).

The trial court sentenced defendant on count one to fifteen years in prison with 85% parole ineligibility and five years special parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count six, defendant was sentenced to fifteen years in prison with 85% parole ineligibility and five years special parole supervision pursuant to NERA, to run consecutively to count one. On count eleven, defendant was sentenced to a term of fifteen years with 85% parole ineligibility and five years special parole supervision pursuant to NERA, to run concurrently to counts one and six. On count seventeen, defendant was sentenced to a term of five years to run concurrently to counts one, six and eleven.3 The court merged the other counts.

Defendant appeals, raising the following arguments:

II.

Defendant's first claim challenges the answer his own counsel suggested providing to a jury question. Shortly after retiring to deliberate, the jury sent a note to the court stating: "[p]lease explain first and second degree charges, thank you. P.S. and third degree." Defendant's counsel suggested:

The trial court stated it was "not opposed to doing that." However, the State objected and argued that informing the jury of the different penalties for each degree might cause the jury to "start thinking as far as [the] penalty phase and it would be best to instruct them that the charges are what they are [deciding] here and they have to decide whether or not the State has proven them beyond a reasonable doubt and not go to what the degree is." The State further suggested instructing the jury that "they are not to be concerned with degree but rather whether or not the charges are proven." Defense counsel objected to the State's proposed instruction "because [the court] would be telling [the jury] it doesn't matter what the charges are, you just have to decide whether or not [defendant is] guilty."

After argument from counsel, the court brought the jury back into the courtroom and explained that a "[f]irst degree charge, the most serious charge and they carry as penalty between ten and twenty years; [s]econd degree charges carry penalty between five and ten and third degree carries penalties between one and five." The court then issued the following admonishment to the jury: "Now, look at me. You are called upon to decide guilt or innocence. That's all you're concerned with, not time or anything else. That's my function if it should arise in this case. You must base your determination on the evidence in the case."

On appeal, defendant argues that the trial court erred when it informed the jury of the penalties associated with first-degree, second-degree, and third-degree crimes. "Generally, juries in criminal cases are not informed of the consequences of returning guilty verdicts." State v. Cooper, 151 N.J. 326, 371 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L. Ed. 2d 681 (2000). "The jury's function is to find facts and to decide whether, on those facts, the defendant is guilty of the crime charged." Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 2424, 129 L. Ed. 2d 459, 466 (1994). "The judge, by contrast, imposes the sentence on the defendant after the jury has arrived at a guilty verdict." Ibid. "[W]hen a jury has no sentencing function, it should be admonished to `reach its verdict without regard to what sentence might be imposed.'" Ibid. (citation omitted).

The trial court erred in informing the jury of the penalties for first-degree, second-degree, and third-degree crimes. See State v. Carswell, 303 N.J.Super. 462, 477 (App. Div. 1997). Indeed, the trial court itself recognized that it "invites [jurors] to ponder matters that are not within their province, distracts them from their fact finding responsibilities, and creates a strong possibility of confusion." The court should not have given that information in answer to the jury's question, even if defendant's counsel felt it was helpful to his client.

However, defendant cannot complain because he invited the error. "`The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)) (citation omitted). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error or prejudicial." State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)); accord M.C. III, supra, 201 N.J. at 340.

"The invited-error doctrine is intended to `prevent defendants from manipulating the system' and will apply `when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100 (2014) (citation omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 1537, 191 L. Ed. 2d 565 (2015). "The doctrine `is grounded in considerations of fairness,' but will not apply automatically if to do so would `cause a fundamental miscarriage of justice.'" Ibid. (citation omitted).

Defendant fails to show that the invited error of informing the jury of the penalties for first-degree, second-degree, and third-degree crimes "`cause[d] a fundamental miscarriage of justice.'" Ibid. First, the trial court told the jurors that they should solely decide the issue of guilt or innocence based only on the evidence, and that they should not be concerned with prison time. We presume "jurors will follow the instructions given them by the court." State v. T.J.M., 220 N.J. 220, 237 (2015). Second, the jury did not differentiate between counts based on their degree and penalties. Defendant was convicted of all the charges at trial except for count sixteen regarding terroristic threats. These charges included first-degree, second-degree, and third-degree crimes, which indicates the jury considered each charge independent of their varying degrees and penalties. Third, it was not a fundamental miscarriage of justice to convict defendant of at least two counts of first-degree aggravated sexual assault because defendant conceded committing the underlying acts. Defendant admitted in his statement to Detective Mignone that he had sex with his daughter approximately "thirty to forty times" starting when she was twelve, and that the last time he had sex with her was October 6, 2010, when she was thirteen.

Defendant argues that the trial court's admonishment of the jury to only consider guilt or innocence was not as forceful as required by our Supreme Court in State v. White, 27 N.J. 158, 179 (1958) ("the subject of possible parole must be excluded from your deliberations"), and State v. Conklin, 54 N.J. 540, 547 (1969) (same). However, the trial judge forcefully instructed the jurors that they were "called upon to decide guilt or innocence. That's all you're concerned with, not time or anything else." Moreover, the trial court instructed the jury that it was his function "if it should arise in this case" to sentence defendant. These admonishments were a sufficient clarification of the "basic division of labor between judge and jury," and made clear that "juries are not to consider the consequences of their verdicts." Shannon, supra, 512 U.S. at 579, 114 S. Ct. at 2424, 129 L. Ed. 2d at 466. Thus, we follow here the "`almost invariable assumption of the law that jurors follow their instructions.'" Id. at 585, 114 S. Ct. at 2428, 129 L. Ed. 2d at 470 (citation omitted).

Finally, we must also consider "`the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (citation omitted). The victim's testimony was uncontested and corroborated by DNA evidence and by defendant. Defendant himself admitted having sexual intercourse with his young daughter thirty or forty times. Defendant's only defense was to claim intoxication, which was not supported by the evidence. We see no likelihood that the result would have been different had the jury not been told the differences between first-degree, second-degree, and third-degree crimes.

III.

Defendant next argues that a charge on voluntary intoxication was required. As defendant did not testify or present evidence at trial, the only evidence of his alcohol use was its mention in the victim's testimony and in defendant's video statement to Detective Mignone, which was played for the jury. J.S. testified that defendant "would drink almost every day," that he would drink heavily to the point that he was "drunk," and that his personality would become "aggressive" when he was drinking. In defendant's statement, when asked what made him do this, defendant replied "the use for the alcohol." He added: "My weakness for alcohol make me do all these stupid things, because it's — you know, I just get for blind, I don't think what — what is going to happen — what — . . . is happening. . . . [L]ike the alcohol keeps me blind[.]" The trial court, having watched the video, found that "there was never any mention at all that [defendant] was in fact intoxicated."

Voluntary "intoxication of the actor is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a).4 "N.J.S.A. 2C:2-8(a) permits evidence of intoxication as a defense to crimes requiring either `purposeful' or `knowing' mental states but it excludes evidence of intoxication as a defense to crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986). "Courts have generally ascribed the culpable mental state of `knowingly' with respect to crimes that do not otherwise designate a culpable mental state." State v. Sewell, 127 N.J. 133, 141 (1992) (citing cases that indicate "endangering welfare of a child" and "aggravated sexual assault" are both crimes with a "knowingly" mental component). Here, the State does not dispute that the crimes of aggravated sexual assault, sexual assault, endangering the welfare of a child, aggravated sexual contact, and terroristic threats require a defendant to act with a knowing mental state.

Proper jury instructions "are essential for a fair trial." State v. Perez, 219 N.J. 338, 351 (2014). However, a defendant is not entitled to an instruction on a defense unless "`there exists evidence sufficient for a reasonable jury to find in his favor.'" State v. Sloane, 111 N.J. 293, 303 (1988) (quoting Matthews v. U.S., 485 U.S. 58, 63, 108 S.Ct. 883, 857, 99 L. Ed. 2d 54, 61 (1988)). "In order to satisfy the statutory condition" justifying a voluntary intoxication charge to the jury, the "intoxication must be of an extremely high level." Cameron, supra, 104 N.J. at 54. Thus, "consistency between the definition of intoxication and the effect given it by the legislature require that the standard be `prostration of faculties.'" Ibid. A defendant must show a "prostration of faculties," was namely, "a condition of intoxication that renders the actor incapable of purposeful or knowing conduct." Id. at 56.

Thus, in determining whether to give a voluntary intoxication charge to the jury, there must be a "rational basis for the conclusion that defendant's `faculties' were so `prostrated' that he or she was incapable of forming" the requisite mental state. State v. Mauricio, 117 N.J. 402, 418-19 (1990); see Cameron, supra, 104 N.J. at 50, 54. Cameron listed "some of the factors pertinent to the determination of intoxication sufficient to satisfy the test of `prostration of faculties'":

Here, even "viewing the evidence and the legitimate inferences to be drawn therefrom in the light most favorable to defendant," there was no rational basis for concluding that. Id. at 57. Neither J.S. nor defendant stated that his faculties were so prostrated that he was incapable of knowing that he was having sexual intercourse with his daughter, sexually touching her, or holding a knife to her throat. Moreover, defendant made no claim that he was thus prostrated every one of the thirty or forty times he admitted having intercourse with her.

Indeed, defendant did not claim to have been thus prostrated for any of the thirty to forty occasions when he had sex with J.S. He admitted he was sober during the only incident he specifically addressed, his final penetration of his daughter on October 6, 2010. Moreover, defendant recalled these prior incidents of intercourse with J.S. Defendant's "ability to recall significant events" strongly indicates he was not so prostrated as to be incapable of knowing what he was doing. Cameron, supra, 104 N.J. at 56.

The other Cameron factors likewise do not justify an intoxication charge here. Ibid. Neither J.S. nor defendant testified that he had an "odor of alcohol" when he had sex with her, and there were no "tests to determine blood-alcohol content." Ibid. Although J.S. testified that he became aggressive when he was drinking, she did not testify to any aspects of his conduct that suggested prostration, such as lack of coordination. Ibid. Nor was there any specific information as to "the quantity of intoxicant consumed, [or] the period of time involved" in his consumption and between that consumption and the crime. Ibid.

J.S. did testify that defendant would drink heavily to the point that he was drunk. However, statements by a victim, let alone a preteen victim, that a "defendant was drunk" or "`very intoxicated'" "are no more than conclusory labels, of little assistance in determining whether any drinking produced a prostration of faculties." Ibid. Similarly, J.S.'s testimony that defendant drank almost every day is insufficient. State v. R.T., 411 N.J.Super. 35, 50 (App. Div. 2009) (testimony that the defendant "had a longstanding drinking problem, often drank four to eight beers a day from mid-day through the evening, and would get . . . `drunk,'" was inadequate to justify an intoxication instruction), aff'd by equally divided court, 205 N.J. 493 (2011). Thus, applying Cameron's factors "to the facts before us, we conclude that the trial court correctly refused to instruct on intoxication." Mauricio, supra, 117 N.J. at 419.

IV.

Defendant lastly challenges his sentence. "It is well-established that appellate courts review the trial court's `sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). This court is "`bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted). We must hew to this standard of review.

Defendant relies on State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986), which provided a set of six "general sentencing guidelines" used to determine the concurrent or consecutive nature of a sentence. Id. at 644. Defendant does not dispute that his sentence for count six should be consecutive to his sentence for count one. Rather, he cites one of these criteria, number (5), which states that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense." Yarbough, supra, 100 N.J. at 643-44.

He claims criterion (5) shows that his consecutive sentence under count six should have been less than his sentence on count one. Id. at 644. However, we have upheld the imposition of two consecutive twenty-year terms for aggravated sexual assault under Yarbough because the crimes "were committed at different times and involved multiple victims," and the case was "extraordinary." State v. J.G., 261 N.J.Super. 409, 426-27 (App. Div.), certif. denied, 133 N.J. 436 (1993).

This too is an extraordinary case justifying consecutive sentences. Count one charged defendant with committing first-degree aggravated sexual assault "by vaginal penetration upon J.S., age 11" between February 2008 and February 2009, and count six charged defendant with committing first-degree aggravated sexual assault "by vaginal penetration upon J.S., age 12," between February 2009 and February 2010. Given J.S.'s testimony that defendant would have sex with her three or four times a week, and defendant's admission that he had sex with J.S. thirty or forty times, counts one and six each represent defendant's convictions of numerous, independent, and separate criminal acts of sexual intercourse over a span of a year.

The trial court explained that defendant "committed this aggravated assault, which was vaginal penetration of his daughter, over a two or three-year period of time, and it was judged he did this in excess of forty-something occasions. And as a result of this, the court felt [it was] appropriate" to "impose consecutive sentences, at least on two counts." In addition, the trial judge found that "the crimes were predominantly independent of each other. They involved separate acts of violence, they were committed at different times with the same victim." Thus, it was not an abuse of discretion to impose equal consecutive sentences for two consecutive years of defendant repeatedly violating his own daughter.

Defendant also argues that the trial court erred in weighing aggravating factor N.J.S.A. 2C:44-1(a)(2). Defendant cites the principle that "facts that establish[] elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000). He then argues that the trial court erred in considering J.S.'s "extreme youth" to support application of aggravating factor two because it resulted in a double-counting of an element of the offenses.

Here, defendant's crimes against J.S. began when she was eleven, continued when she was twelve, and finished when she was thirteen. Defendant notes that he received his main sentences under N.J.S.A. 2C:14-2(a)(1), which states that a person "is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person [and] the victim is less than 13 years old." Defendant was also convicted under N.J.S.A. 2C:14-2(b), which states that a person "is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." An eleven-year-old is one year younger than the maximum age.

However, defendant was also convicted under N.J.S.A. 2C:24-4(a)(1) and (2), endangering the welfare of a child, where "child" is defined as a "person under 18 years of age," N.J.S.A. 2C:24-4(b)(1). An eleven-year-old is seven years below the maximum age. Defendant was also convicted under N.J.S.A. 2C:14-2(a)(2)(a) and N.J.S.A. 2C:14-3(a), both of which apply where "[t]he victim is at least 13 but less than 16 years old." Defendant committed these crimes against J.S. when she was thirteen, the minimum age under the statute. N.J.S.A. 2C:14-2(a)(2). There was thus some basis for calling J.S. young for these crimes without double-counting an element of these offenses.

In any event, J.S.'s age was not the sole basis cited by the trial court for finding aggravating factor two, which addresses:

In addition to her "extreme youth," the trial court also cited "the trauma that she has undergone as a result of the sexual abuse by her father" as justifying application of the factor. The court found that it was "clear that the child was traumatized as a result" of defendant's actions and that she "continues to be traumatized by it as was reflected in her testimony before this Court and the fact that she is now being accorded treatment through the auspices of the Division of Youth and Family Services." The gravity and seriousness of the psychological harm J.S. suffered at the hands of defendant was itself sufficient to justify application of aggravating factor two. See State v. Logan, 262 N.J.Super. 128, 132-33 (App. Div.) (holding that psychological harm justified the application of aggravating factor two when sentencing a defendant convicted of sexual assault, aggravated sexual assault, aggravated sexual contact, and endangering the welfare of a child), certif. denied, 133 N.J. 446 (1993).

Moreover, the trial court also found aggravating factor three, "the risk that the defendant will commit another offense," and aggravating factor nine, "the need to deter defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (9). Finally, the trial court found that no mitigating factors applied. All of these facts convince us that "the aggregate sentence is fully warranted in light of the evidence of defendant's protracted sexual abuse of the young victim." Logan, supra, 262 N.J. Super. at 132-33.

V.

The State notes defendant's sentence failed to include the required parole supervision for life under N.J.S.A. 2C:43-6.4, and Megan's Law registration under N.J.S.A. 2C:7-2. Defendant appears to concede that these requirements should have been imposed at sentencing. "The State, however, did not appeal this aspect of the sentence[.]" State v. Faunce, 244 N.J.Super. 499, 500 n.1 (App. Div. 1990). Therefore, we decline to address the State's argument, without prejudice to a motion pursuant to Rule 3:21-10 to correct defendant's sentence.

Affirmed.