Opinion
DOCKET NO. A-0077-14T2
04-04-2016
STATE OF NEW JERSEY IN THE INTEREST OF A.M., a juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-399-14. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Appellant A.M. challenges the Family Part's determination after a bench trial that, as a juvenile, he sexually assaulted a young girl at some unspecified time between November 2003 and November 2005. Had it been committed by an adult, the proven delinquent conduct would correspond to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second- degree attempted aggravated sexual assault (count three). At sentencing the trial judge imposed a three-year custodial term on count one, merged count two into count one, and imposed a concurrent three-year jail term on count three. We affirm.
The victim, M.Z., was six to eight years of age at the time of appellant's attack. She was then living with her parents. Appellant, who is more than six years older than she, occasionally visited the victim's house because his father and the victim's father were longtime friends. The victim testified that appellant attacked her while she was alone in the house in a bedroom. According to the victim, he sexually assaulted her by vaginally penetrating her, and also attempted to force her to engage in fellatio. There were no eyewitnesses.
The victim did not report these offenses until about eight years later. She did so after she had been questioned by a relative she referred to as her "aunt" (who was actually a cousin of her mother) about the fact that she was required that year to go to summer school. Concerned about the child's situation, the relative asked the victim to write her a letter explaining her plans for the future. In that letter, the victim revealed for the first time the prior sexual attack. The revelation led to an investigation and ultimately the juvenile prosecution of appellant.
The State presented its proofs in a two-day bench trial. The State presented testimony from the victim, as well as an expert in child sexual abuse. Appellant himself testified and denied the offenses. He did not present a competing expert.
After hearing these proofs, Judge Robert A. Kirsch issued an eighteen-page detailed opinion finding appellant guilty and adjudicating him as delinquent. The judge's opinion discusses the trial evidence in meticulous detail and also addresses a variety of evidentiary issues that arose.
Appellant makes two arguments on appeal contesting the final judgment:
Appellant does not challenge his sentence. --------
POINT I
THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM ESTABLISHING AND ARGUING THAT M.Z. WAS RAPED BY A THIRD PARTY, THEREBY DEPRIVING THE JUVENILE OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE.
POINT II
THE COURT'S ADJUDICATIONS OF DELINQUINCY WERE NOT SUPPORTED BY AND WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE, AND THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL OR REQUIRED A NEW TRIAL.
The first issue relates to the fact that the victim had described her attacker initially to the prosecutor's office as being thin. It is apparently undisputed that at the time in question appellant was overweight. The victim's cousin, A.C., Jr., lived in the same multi-family house. A.C., Jr. was thin and thus more closely met the description that the victim had initially given to the authorities. During trial, the victim described appellant several times as "chubby," but explained that he had become "slimmer" as he aged.
At trial, defense counsel made a proffer for appellant to testify that A.C., Jr. had sexually assaulted him on a prior occasion. The court rejected that proffer because there was no other evidence in the record to support a theory that A.C., Jr. was the victim's attacker. Instead, the victim positively identified appellant as her assailant. When questioned specifically, she denied that A.C., Jr. was her attacker.
As the judge noted in his written opinion, the victim "adamantly and consistently stated that it was [appellant], and not [A.C., Jr.], who had sexually assaulted her by putting his penis inside her and trying to put his penis in her mouth." Her identification of appellant as her attacker was "based on personal knowledge, as their families were interconnected and had a lifelong relationship." The judge observed that the victim "did not appear the slightest bit confused at any time regarding the identity of her assailant, which she stated repeatedly and credibly was [appellant]." The judge rejected the suggestion that the victim had an animus or motive to falsely implicate appellant, "whom, for all intents and purposes, she had ceased to so much as see or interact with for many years prior to the disclosure."
The judge's opinion details for over two full pages why he was impressed with the overall credibility of the victim, "who testified at great length, and was the most critical witness of the trial." Among other things, the judge observed that the victim was "poised, clear and direct in her testimony," that she "gave complete answers," "maintained excellent eye contact with the questioner," and that she was "even-keeled, measured and appeared to be earnest and candid throughout," despite the personal and painful nature of the subject matter. The judge further highlighted that, even with the intervening passage of time, the victim's memory of the incident was "distinct and clear," and that she did not appear to "overstate or embellish what had happened[.]" The judge acknowledged that defense counsel brought out certain inconsistencies and omissions in the victim's descriptions of the events, but he found those testimonial flaws minor and inconsequential.
The judge also found credible the testimony of the victim's parents, who corroborated appellant's access to the victim within the premises and his ample opportunity to assault her there. In addition, the judge found "helpful and credible" the opinions of the State's child sexual abuse expert, who addressed how victims of such abuse may be prone to secrecy, helplessness, and to delay disclosure of their abuse.
We recognize that courts generally afford substantial leeway to criminal defendants and juveniles charged with an offense to argue that the offense was instead committed by a third party. See Chambers v. Miss., 410 U.S. 284, 297-98, 302, 93 S. Ct. 1038, 1047, 1049, 35 L. Ed. 2d 297, 310, 312-13 (1973); State v. Fortin, 178 N.J. 540, 590-91 (2004). Nevertheless, that leeway is not boundless. Evidence of third-party guilt is admissible "only when 'the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Loftin, 146 N.J. 295, 345 (1996) (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959)).
It is insufficient for the charged individual to "prove some hostile event and leave its connection with the case to mere conjecture." Sturdivant, supra, 31 N.J. at 179. Where, as here, an accused is asserting that a specific other person committed the offense, he or she must provide an adequate factual basis to support that individualized claim. See, e.g., State v. Koedatich, 112 N.J. 225, 302-06 (1988) (permitting a defendant to argue generically that "someone else" committed the crime, but disallowing his claim that a specific person was guilty of it, as there was an insufficient factual link to support that contention), cert. denied, 499 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).
Trial courts are accorded substantial discretion in making these "fact-sensitive" decisions on whether to admit or exclude proof of alleged third-party guilt. Koedatich, supra, 112 N.J. at 300; see also Loftin, supra, 146 N.J. at 345. Here, we discern no abuse of that discretion by the trial judge in disallowing appellant's proffer that he had personally been sexually abused by A.C., Jr. in the past.
As the judge aptly noted, although the victim and A.C., Jr. lived in the same house, there was not a "shred of evidence" to support appellant's theory that A.C., Jr. had sexually assaulted her. There was no proof that anyone ever observed A.C., Jr. making sexual advances toward the victim, nor any statements in the record by either of them referring to such conduct. The judge had ample grounds to reject what is, in essence, a speculative contention of modus operandi. See N.J.R.E. 404(b). For one thing, the victim and appellant have different genders and are more than six years apart in age, and appellant has not proffered some uniquely common feature explaining why both would allegedly be attacked by A.C., Jr.
The victim was clear and unequivocal in her testimony that appellant, not A.C., Jr., was her attacker. We must defer to the trial judge's favorable assessment of her credibility in general and on that subject in particular. State v. Locurto, 157 N.J. 463, 471-72 (1999). Even if, as appellant alleges, he was sexually assaulted by A.C., Jr. at some time in the past, that singular allegation was inadequate to require the court to consider proofs of his uncorroborated theory of third-party guilt.
Appellant's second contention that the State failed to prove his guilt beyond a reasonable doubt is likewise unavailing. In non-jury matters such as this one, the appellate court is not guided by a "weight of the evidence" standard but instead considers "whether there is sufficient credible evidence in the record to support the judge's determination" of guilt. State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Despite the time interval between the offenses and the victim's decision to report them, and the minor inconsistencies in her narrative, there is an ample reasonable factual basis in the record to sustain the finding of guilt. We affirm the disposition, substantially for the extensive reasons detailed in Judge Kirsch's comprehensive and thoughtful written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION