Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 3, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Kelvin Williams

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-0824-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.8K)

• PDF

Combined Opinion

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NOT FOR PUBLICATION WITHOUT THE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-0824-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELVIN WILLIAMS,

Defendant-Appellant.

---

Submitted January 22, 2026 – Decided March 3, 2026

Before Judges Currier and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 21-08-
0852.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).

LaChia L. Bradshaw, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
Defendant Kelvin Williams appeals from his convictions and sentence

following a jury verdict finding him guilty of second-degree sexual assault and

first-degree aggravated sexual assault. Defendant contends the trial court

committed plain error by failing to give a sua sponte jury instruction on the

defense of consent. We disagree and find no plain error as the trial court's

instructions sufficiently addressed consent.

However, because the sentencing court did not provide sufficient reasons

as to the application of mitigating factor eight, and did not address whether the

second-degree sexual assault conviction should merge into the first-degree

aggravated sexual assault conviction, we vacate the sentence and remand for

resentencing.

I.

On June 8, 2019, L.S. 1 and defendant were both present at a social

gathering at a mutual friend's residence in Moorestown, New Jersey. L.S.

testified she consumed a substantial amount of alcohol as the evening

progressed. She estimated her intoxication at a "seven or eight" on a ten-point

scale when defendant arrived at the residence around 9:00 p.m. At

approximately 1:30 a.m., a group from the party, including L.S. and defendant,

1
We use initials to protect the privacy of the victim. See R. 1:38-3(c)(12).
A-0824-23
2
went to a bar where L.S. had "a few" more beers. After the bar closed at

approximately 3:00 a.m., the group returned to the Moorestown residence and

continued drinking and socializing on the back deck. By that time, L.S.

estimated her level of intoxication as "eight or nine" out of ten.

As guests began leaving or going to bed, L.S. went to the basement, where

she fell asleep alone on a couch at approximately 4:00 or 4:30 a.m. L.S. recalled

vague, dreamlike memories of someone being present with her on the couch, of

being pushed forward, and of her face being pressed into a pillow, but testified

she was unable to respond or physically resist.

When L.S. awoke later at approximately 12:30 p.m., she discovered she

was naked from the waist down, with her shorts and underwear lying on the floor

nearby. She described experiencing a moment of panic, quickly dressed, and

went to the basement bathroom, where she observed blood on her underwear and

felt burning in her vaginal area. L.S. left without interacting with anyone.

The owner of the residence testified he woke up at approximately 6:30

a.m., went to the basement, and saw L.S. sleeping on the couch covered with a

blanket. His roommate testified he also woke at approximately 6:30 a.m. and

saw L.S. alone in the basement covered with the blanket. About two hours later,

he returned to the basement and observed defendant sleeping on a separate couch

A-0824-23
3
positioned perpendicular to the one where L.S. was sleeping. Both testified they

did not witness any sexual activity.

That day, L.S. went to the Moorestown Township Police Department

(MPD) to report she had been sexually assaulted. She was interviewed by

Detective Jason Burk. After the interview, L.S. provided Detective Burk with

the clothing she had worn and then went to the hospital, where a sexual assault

examination (SANE) was conducted. The examination included external

genitalia swabs, vaginal swabs, cervical swabs, anal swabs, and rectal swabs, as

well as a swab of her breasts. The SANE nurse documented both external and

internal vaginal injuries, including two small tears on the external genitalia and

a tear inside the vaginal wall.

Laboratory testing of the swabs from the SANE examination as well as

L.S.'s clothing detected the presence of blood and sperm, stipulated to at trial.

New Jersey State Police Forensic Scientist Christine Bless testified defendant

was the source of the DNA profile located in the samples. The parties also

stipulated ethyl alcohol appeared in L.S.'s urine but was absent from her blood,

showing she had previously consumed alcohol but was not intoxicated when the

samples were collected.

A-0824-23
4
After interviewing L.S., Detective Burk went to the Moorestown

residence and interviewed all male attendees of the party, including defendant,

each of whom consented to provide a DNA swab. Defendant provided Burk

with a general narrative of the night and morning and said he had slept upstairs

in a chair in the living room. Detective Burk then entered the basement and

observed a bloodstain on the couch where L.S. had told police she slept.

Defendant gave a second statement to Detective Burk on June 10, 2019,

in which he again denied having had sexual intercourse with L.S. He stated he

and L.S. had kissed years ago and he would have "loved to hook up with her[,]

but she always said no." He also stated he went to the basement at approximately

6:00 a.m. because he had to use the bathroom and then decided to sleep on the

couch adjacent to where L.S. was sleeping. He reported speaking with L.S.

briefly when she woke up, but denied "anything happening" between the two.

Defendant's testimony at trial differed from what he told Burk during

either statement. At trial, defendant testified he had engaged in consensual

sexual intercourse with L.S. during the early morning of June 9, 2019. He

admitted to lying in his statements to the police because he "panicked" and

"didn't want to get arrested for something that got misconstrued." Defendant

testified he initially tried to fall asleep in a chair upstairs but went to the

A-0824-23
5
basement because the upstairs bathroom was occupied. When he entered the

basement, L.S. was awake on the couch under a blanket and told him she was

trying to sleep. After using the bathroom, defendant asked L.S. if he could

cuddle with her. She responded, "sure," and he laid on the couch with her under

her blanket. He testified they began touching and kissing, eventually leading

her to remove her shirt, pants, and underwear. He stated he then penetrated her

vagina with his finger, performed oral sex on her, and then engaged in vaginal

intercourse. He testified L.S. did not resist and was a willing participant. L.S.

testified she did not consent to sexual intercourse with defendant at any time

that evening or morning, nor did she indicate any desire to do so.

A Burlington County Grand Jury returned an indictment charging

defendant with second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count one),

and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (count two).

At trial, the jury found defendant guilty on both counts. Defendant was

sentenced to seven years in prison with three years of parole supervision for

count one, and a concurrent sentence of fifteen years' imprisonment with five

years of parole supervision for count two, both subject to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2. The court found N.J.S.A. 2C:44-1(a)(2)

A-0824-23
6
(aggravating factor two) and N.J.S.A. 2C:44-1(a)(9) (aggravating factor nine)

applied, as well as N.J.S.A. 2C:44-1(b)(7) (mitigating factor seven).

On appeal, defendant raises the following contentions:

POINT I: IT WAS PLAIN ERROR FOR THE TRIAL
COURT TO FAIL TO ISSUE A COMPLETE
CHARGE ON THE CONSENT DEFENSE WHEN
CONSENT WAS THE SOLE ISSUE AT TRIAL. (Not
Raised at Trial)

POINT II: THE FIFTEEN-YEAR NERA SENTENCE
WAS MANIFESTLY EXCESSIVE AND NOT
JUSTIFIABLE BASED ON A PRINCIPLED
APPLICATION OF THE AGGRAVATING AND
MITIGATING FACTORS.

II.

We begin our review by recognizing "[w]e review for plain error the trial

court's obligation to sua sponte deliver a jury instruction when a defendant does

not request it and fails to object at trial to its omission." State v. Alexander, 233

N.J. 132, 141-42 (2018); see also State v. Bragg, 260 N.J. 387, 404 (2025).

"Under that standard, a reviewing court must 'disregard any alleged error unless

it is of such a nature as to have been clearly capable of producing an unjust

result.'" Ibid. (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)) (internal

quotation marks omitted); R. 2:10-2. "Reversal is justified only when the error

was 'sufficient to raise a reasonable doubt . . . as to whether the error led the jury

A-0824-23
7
to a result it otherwise might not have reached.'" Ibid. (quoting Funderburg, 225

N.J. at 79) (internal quotation marks omitted). Moreover, "[a]n appeal centered

around jury instructions requires courts to read the charge as a whole, and not

just the challenged portion, to determine its overall effect." State v. A.L.A., 251

N.J. 580, 591 (2022). "The error must be considered in light of the entire charge

and must be evaluated in light 'of the overall strength of the State's case.'" State

v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289

(2006)).

Defendant argues the jury instructions regarding consent were incomplete

and a separate model jury charge on consent should have been given. Because

defendant neither requested a more comprehensive consent instruction nor

objected to the charge as given, we review for plain error. See Bragg, 260 N.J.

at 404.

"Appropriate and proper jury instructions are essential for a fair trial."

A.L.A., 251 N.J. at 591. A jury charge must "correctly state the applicable law,

outline the jury's function and be clear in how the jury should apply the legal

principles charged to the facts of the case at hand." Id. at 591-92 (quoting Est.

of Kotsovska v. Liebman, 221 N.J. 568, 591 (2015)) (internal quotation marks

omitted). Jury charges must be tailored to the specific facts of the case. See

A-0824-23
8
State v. Savage, 172 N.J. 374, 389 (2002) (pointing out that New Jersey courts

"regularly have noted the importance of tailoring the jury charge to the facts of

the case").

The jury instructions the trial court gave for both sexual assault and

aggravated sexual assault fully addressed consent. As to sexual assault the trial

court instructed, in pertinent part:

The third element that the State must prove
beyond a reasonable doubt, is that the defendant used
physical force.

Physical force is defined as the commission of
the act of sexual penetration without the victim's freely
and affirmatively giv[en] permission to the specific act
of penetration alleged to have occurred. You must
decide whether the defendant's alleged act of
penetration was undertaken in circumstances that led
the defendant reasonably to believe that the victim had
freely given affirmative permission to the specific act
of sexual penetration. Simply put, affirmatively given
permission means the victim did or said something
which would lead a reasonable person to believe she
was agreeing to engage in the act of sexual penetration,
and freely given permission means the victim agreed,
of her own free will, to engage in the act of sexual
penetration. Freely and affirmatively given permission
can be indicated either through words or through
actions that, when viewed in the light of all the
surrounding circumstances, would demonstrate to a
reasonable person that affirmative and freely given
permission for the specific act of sexual penetration had
been given.

A-0824-23
9
Persons need not, of course, expressly announce
their consent to engage in the act of sexual intercourse
for there to be affirmative permission. Permission to
engage in an act of sexual penetration can be and,
indeed, often is indicated through physical actions
rather than words. Permission is demonstrated when
the evidence, in whatever form, is sufficient to
demonstrate that a reasonable person would have
believed that the alleged victim had affirmatively and
freely given authorization to the act.

Proof that the act of sexual penetration occurred
without the victim's permission can be based on
evidence of conduct or words in light of surrounding
circumstances, and must demonstrate beyond a
reasonable doubt that a reasonable person would not
have believed that there was affirmative and freely
given permission. If there is evidence to suggest that
the defendant reasonably believed that such permission
had been given, the State must demonstrate beyond a
reasonable doubt that the defendant did not actually
believe such permission had been freely given or that
such a belief was unreasonable under all the
circumstances.

In determining the reasonableness of defendant's
belief that a victim had freely given affirmative
permission, you must keep in mind that the law places
no burden on the alleged victim to have expressed
nonconsent or to have denied permission. You should
not speculate as to what the alleged victim thought or
desired or what she did not resist or protest. The State
is not required to prove that the victim resisted.
Knowledge is a condition of the mind. It cannot be
seen. It can only be determined by inference from
defendant's conduct, words or acts. A state of mind is
rarely susceptible of direct proof but must ordinarily be
inferred from the facts. Therefore, it's not necessary

A-0824-23
10
that the State produce witnesses to testify that an
accused said he had a certain state of mind when he did
a particular thing. It's within your power to find that
such proof has been furnished beyond a reasonable
doubt by inference which may arise from the nature of
his acts and conduct and from what he said and did at
the particular time and place and from all surrounding
circumstances established by the evidence.

As to aggravated sexual assault, the trial court stated, in pertinent part:

The third element that the State must prove
beyond a reasonable doubt is that at the time of the
penetration, [L.S.] was physically helpless and/or
mentally incapacitated, which rendered the victim
temporarily or permanently incapable of understanding
the nature of her conduct including, but not limited to
being incapable of providing consent.

Physically helpless means that condition which a
person is unconscious or is physically unable to flee or
physically unable to communicate and willingness to
act. Mentally incapacitated means that condition which
a person is rendered temporarily incapable of
understanding or controlling her conduct due to the
influence of a narcotic, anesthetic, intoxicant or other
substance administered to that person without her prior
knowledge or consent or due to any other act committed
upon that person which rendered that person incapable
of appraising or controlling her conduct.

The fourth element is that the State must prove beyond
a reasonable doubt that defendant knew or should have
known that [L.S.] was physically helpless and/or
mentally incapacitated which rendered the victim
temporarily or permanently incapable of understanding
the nature of her conduct, including but not limited to
being incapable of providing consent.

A-0824-23
11
Defendant contends the charges given to the jury "failed to convey that the

defense [of consent] must be affirmatively disproved by the State."

The court did not commit plain error in failing to give a sua sponte jury

instruction on the defense of consent. First, contrary to defendant's argument,

consent is not an affirmative defense to sexual assault or aggravated sexual

assault. Whether the victim had not given "affirmative and freely-given

permission" to the act of sexual penetration is an element of sexual assault the

State must prove beyond a reasonable doubt, rather than an affirmative defense.

N.J.S.A. 2C:14-2(c)(1); see also Model Jury Charges (Criminal), "Sexual

Assault (N.J.S.A. 2C:14-2c(1))" (approved Aug. 18, 2025). Similarly, for

aggravated sexual assault, the State must prove beyond a reasonable doubt

[t]he victim, at the time of sexual penetration, is one
whom the actor knew or should have known was . . .
physically helpless or incapacitated . . . which rendered
the victim temporarily or permanently incapable of
understanding the distinctively sexual nature of the
conduct, including, but not limited to, being incapable
of providing consent, or incapable of understanding or
exercising the right to refuse to engage in the conduct.

[N.J.S.A. 2C:14-2a(7); see also Model Jury Charges
(Criminal), "Aggravated Sexual Assault (Mentally
Incapacitated) (N.J.S.A. 2C:14-2a(7))" (rev. Feb. 6,
2012).]

A-0824-23
12
The charges given explicitly illustrate the State's burden to prove these

elements beyond a reasonable doubt. The trial court read both model jury

instructions verbatim. See State v. Amang, 481 N.J. Super. 355, 409 (App. Div.

2025) ("A jury charge is presumed to be proper when it tracks the model jury

charge verbatim because the process to adopt model jury charges is

'comprehensive and thorough.'" (quoting State v. R.B., 183 N.J. 308, 325

(2005))).

The separate model charge on consent, which defendant contends the trial

court should have sua sponte read to the jury, provides:

As part of his/her defense to the charge of ___,
the defendant contends that the State has not proven
each element of the offense beyond a reasonable doubt
because the victim consented to the alleged criminal
activity. In considering this contention you should
understand that consent of the victim can be a complete
defense to a criminal charge only under certain limited
circumstances which I will describe for you.

First, you should know that consent in the law has
a meaning very similar to its everyday meaning. It is
the victim's voluntary and serious agreement or
submission to the alleged criminal conduct or the result
of that conduct. In order for consent to give rise to a
valid defense it must, of course, be given freely and it
must be legally effective.

Consent can never be legally effective in
providing a defense to a criminal charge if: . . . (b) the
victim was by reason of [her] . . . intoxication either

A-0824-23
13
known by the defendant to be unable or was manifestly
unable to make a reasonable judgement as to the nature
of harmfulness of the conduct charged to constitute an
offense.

In determining whether the consent of the victim
was freely and voluntarily given, you are advised that
consent may be openly expressed, implied, or apparent
from the victim's willing participation in the activity in
question. Further, you may consider all that [she] said
and did at the particular time and place, all of the
surrounding circumstances and whether a normal
competent person would freely and seriously consent to
the conduct with which the defendant is charged.

[Model Jury Charges (Criminal), "Consent (Which
Negates an Element of the Offense) (N.J.S.A. 2C:2-
10)" (approved Oct. 17, 1988).]

This charge merely restates the key points from the charge given by the

court, albeit in a different order. It also lacks specific tailoring to the offenses

of sexual assault and aggravated sexual assault. See Savage, 172 N.J. at 389.

Moreover, had the trial court included the charge sua sponte, it could have

harmed defendant because it would have highlighted to the jury that consent

does not apply in any circumstance where the victim is intoxicated and unable

to judge the harmfulness of the defendant's conduct.

The court properly charged the jury. There was more than ample evidence

to support the jury's verdict. There is no error "sufficient to raise a reasonable

doubt . . . as to whether the error led the jury to a result it otherwise might not

A-0824-23
14
have reached." Bragg, 260 N.J. at 404. We find no basis to disturb the jury

verdict and affirm the convictions.

Defendant also challenges the fifteen-year sentence imposed for count two

as manifestly excessive and unsupported by a principled assessment of

aggravating and mitigating factors. Our review of a sentence is guided by an

abuse of discretion standard. State v. Torres, 246 N.J. 246, 272 (2021). We

"must affirm the sentence of a trial court 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) (quoting State v. Roth, 95 N.J. 334,

364-65 (1984)). We defer to the court's determination and do not substitute our

judgment for that of the sentencing court. State v. Fuentes, 217 N.J. 57, 70

(2014).

N.J.S.A. 2C:44-1(b)(8) (mitigating factor eight) directs courts to consider

whether "[t]he defendant's conduct was the result of circumstances unlikely to

recur." In determining mitigating factor eight did not apply, the sentencing court

reasoned:

Mitigating factor eight does not apply,
defendant's conduct was a result of circumstances

A-0824-23
15
unlikely to recur. In order for the [c]ourt to find
mitigating factor eight the [c]ourt would have to greatly
speculate as to what the defendant would do. And
although noting that the defendant does not have a prior
criminal history, the way this whole incident came
about, the [c]ourt cannot say for any certainty that he
wouldn't do it again if the situation presented itself in
this way or some other similar way.

Defendant maintains the sentencing court erred in finding mitigating

factor eight inapplicable, highlighting his unblemished criminal history, stable

personal life, and several prior instances where L.S. had been passed out drunk

while defendant was present and no misconduct had occurred, which defendant

argues demonstrate circumstances unlikely to recur.

It is well-established the consideration of aggravating and mitigating

factors must be part of the deliberative process. State v. Dalziel, 182 N.J. 494,

505 (2005); State v. Cassady, 198 N.J. 165, 180 (2009). Trial courts must

"explain and make a thorough record of their findings to ensure fairness and

facilitate review." State v. Comer, 249 N.J. 359, 404 (2022). "Proper sentencing

thus requires an explicit and full statement of aggravating and mitigating factors

and how they are weighed and balanced." State v. McFarlane, 224 N.J. 458, 466

(2016) (quoting State v. Randolph, 210 N.J. 330, 348 (2012)). Indeed,

"[C]ritical to the sentencing process and appellate review is the need for the

sentencing court to explain clearly why an aggravating or mitigating factor

A-0824-23
16
presented by the parties was found or rejected and how the factors were balanced

to arrive at the sentence." State v. Case, 220 N.J. 49, 66 (2014).

The court's finding regarding mitigating factor eight are not clear . The

trial court stated "the way this whole incident came about" as reasoning for why

there is not "any certainty" defendant would not reoffend. However, certainty

is not the standard. As we are returning the matter for a new sentencing hearing,

the court will consider the aggravating and mitigating factors.

Defendant further contends the sentencing court engaged in impermissible

double counting when it assigned "very strong" weight to aggravating factor

two, which directs courts to consider:

[t]he gravity and seriousness of the harm inflicted on
the victim, including whether or not the defendant knew
or reasonably should have known that the victim of the
offense was particularly vulnerable or incapable of
resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially
incapable of exercising normal physical or mental
power of resistance.

[N.J.S.A. 2C:44-1(a)(2).]

In determining aggravating factor two applied, the sentencing court

reasoned:

Aggravating factor two . . . has to do with [the]
seriousness of harm inflicted on this victim[;] whether
or not defendant knew or should have known -- and I'm

A-0824-23
17
paraphrasing -- that this victim was not capable of
exercising normal physical or mental power of
resistance. That's exactly what happened here. She was
passed out, could not resist, could not say no, could not
give an indication that she was not wanting to engage
in sexual activity with this person who penetrated her
from behind as she was laying, passed out on the couch,
and was not in a state to advocate or fight for herself,
and there was great and serious harm inflicted on her.
So this is a ready-made case, an example that you could
use to teach people about aggravating factor two. This
is aggravating factor [two] personified. So that is a
very strong factor.

It is well established that "[e]lements of a crime, including those that

establish its grade, may not be used as aggravating factors for sentencing of that

particular crime." State v. Lawless, 214 N.J. 594, 608 (2013); State v.

Kromphold, 162 N.J. 345, 353 (2000); Fuentes, 217 N.J. at 74-75. Our Supreme

Court has therefore cautioned sentencing courts "to avoid 'double counting'

circumstances that the Legislature has already incorporated as an element of the

offense." Lawless, 214 N.J. at 608. "Injuries to victims of other crimes of which

defendant was convicted, however, may be used as aggravating factors for

sentencing of the defendant's particular offense." Ibid.

Clearly, as the State concedes, aggravating factor two "is encompassed

within the crime of aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a(7)"

(count two). Notwithstanding, the State argues that because L.S.'s vulnerable

A-0824-23
18
state was not an element of count one, no impermissible double counting

occurred.

The sentencing court did not address whether the conviction under count

one should merge with the conviction as to count two. Indeed, the record

contains no discussion of merger and the issue was not raised to us on appeal.

Upon remand, the trial court shall conduct an analysis of whether the conviction

as to count one, second-degree sexual assault, should merge with the conviction

as to count two, first-degree aggravated sexual assault. See N.J.S.A. 2C:1-8. In

the event the court finds they should merge, it cannot consider aggravating factor

two in sentencing on the remaining conviction for first-degree aggravated sexual

assault, as that would amount to impermissible double-counting and essentially

punish defendant twice for the vulnerable state of the victim. If in the court's

analysis the two convictions do not merge, the court shall supply its reasoning

for imposing aggravating factor two with respect to count one, despite a separate

sentence imposed for count two, consistent with Torres, 246 N.J. at 271-72.

Affirmed as to the convictions and remanded for resentencing in

accordance with this opinion. We do not retain jurisdiction.

A-0824-23
19