Opinion
DOCKET NO. A-4117-12T1
10-03-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.I., Defendant-Appellant. IN THE MATTER OF A.P., M.I. and J.I., minors.
Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the briefs). Alaina M. Antonucci, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ms. Antonucci, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for minor A.P. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Ostrer and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-183-12. Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the briefs). Alaina M. Antonucci, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ms. Antonucci, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for minor A.P. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief). PER CURIAM
In this Title 9 case, J.I. (Joseph) appeals from the Family Part's February 6, 2013, order finding that he sexually abused A.P. (Anne), daughter of M.P. (Marsha), Joseph's long-time paramour and mother of his two sons. Joseph argues: (1) Anne's hearsay statements that he assaulted her lacked corroboration, and therefore were an inadmissible basis for the court's finding; and (2) the court denied him due process by refusing to compel Anne to submit to a psychological examination by a defense expert. Having reviewed Joseph's arguments in light of the record and applicable legal principles, we affirm.
We use pseudonyms to protect the privacy of A.P. and her family members.
I.
Anne was fourteen years old when she first disclosed that Joseph had been sexually abusing her for several years. Anne had responded to her mother's inquiries, after Marsha had discovered sexually explicit messages on Anne's Facebook page. Anne had been barred by Marsha, and Anne's father, B.D. (Barry), from using social networking sites after they discovered that Anne had been exchanging sexually explicit messages with a male on another internet site when she was about ten or eleven years old.
Anne did not provide details of Joseph's assault until the next day, August 25, 2011. Marsha brought Anne to a health center, where she was interviewed by a nurse who alerted police. She was then interviewed by Detective Joanne Son of the Hudson County Prosecutor's Office Special Victims Unit. Detective Son's interview of Anne was video-recorded and entered into evidence at the fact-finding hearing. Detective Son also testified.
The recording was admitted in evidence and viewed by the court. However, neither party has included the recording, or a transcript, in the record before us. The same is true of Detective Son's videorecorded interviews of the health center nurse, Marsha, and Joseph. Consequently, our understanding of what was said in the interviews is based on the detective's testimony, and written summaries of the interviews admitted into evidence.
Anne asserted in her interview with Detective Son that on the preceding Monday, August 22, Joseph pulled off her bed covers, awakening her; removed her pants; and then vaginally penetrated her with his penis. That was the first instance of penile-vaginal penetration, but she reported prior instances of digital-vaginal penetration, oral-vaginal contact, and numerous instances of penile-anal contact and penetration. The sexual contact first began when she was around ten years old; Joseph touched her breasts while she sat at the computer. The first instance of penile-anal penetration occurred about one year later. Anne also described the size of Joseph's penis, which was somewhat consistent with Joseph's self-description.
Anne stated that the assaults occurred in Marsha's home, where Joseph usually resided, during Marsha's absences or while Marsha, and Anne's siblings were asleep. During the period of time when Anne lived with her father Barry, the assaults occurred during her visits to her mother.
Farkhanda Farooqi, a sexual assault nurse examiner (SANE), testified that she physically examined Anne. She found the scars of two healed tears in the anal opening, and scars of three healed tears in the vaginal opening. The hymen was ruptured and no longer present. She concluded that these tears were consistent with past sexual activity. But, because they were healed, they were not caused by the most recent alleged assault.
Anne was also evaluated in December 2011 by two mental health professionals. The Division asked psychiatrist Alvaro Gutierrez, M.D., to evaluate Anne and recommend treatment. He testified that she suffered from post-traumatic stress disorder, based on, among other things, her reports of nightmares, intrusive thoughts and memories, anxiety, hyper-vigilance, and anger.
Eloise Berry-McBride, Ph.D., a psychologist at the Audrey Hepburn Children's House at Hackensack University Medical Center, found "clinical support" for Anne's allegations. Dr. Berry-McBride based her conclusion on several factors, including "sexual distress" often related to sexual abuse; and symptoms of "precocious sexual behavior" that "were in line with the time she said the abuse started." Although Anne was generally reticent, she repeated to the psychologist many of the allegations made the previous August. Dr. Berry-McBride diagnosed Anne's condition as an "adjustment disorder with mixed emotions, and disturbance of emotions and conduct." She suffered "noticeably elevated" levels of stress.
In his interview with Detective Son, Joseph denied that he engaged in any assault or sexual contact with Anne. In particular, he denied that he engaged in oral or anal sex with any woman, and asserted that the size of his penis made Anne's allegations implausible. He voluntarily submitted to a polygraph examination, during which he again denied any sexual contact. After he was informed of the negative result, he asserted that he had once entered Anne's bedroom unannounced and saw her completely naked, masturbating.
The negative polygraph report was introduced into evidence not for the truth of the result, but for Joseph's post-testing statements.
The proofs were far from one-sided. Joseph elicited, through Marsha's testimony and other evidence, that Anne had a history of acting out in school and at home, which included lying, and making false accusations to deflect attention away from herself for her own misbehavior. Anne admitted that she once lied that Joseph had physically assaulted her, prompting a confrontation between her father and Joseph. She then recanted, explaining she lied in order to persuade her parents to allow her to live with her father. Joseph argued that the allegations against him were designed to distract her parents from disciplining her for using Facebook to engage in sexually oriented conversations.
The court barred the admission of screen shots of the Facebook messages during Marsha's testimony. The court held that Marsha was not competent to lay a sufficient foundation. Moreover, Anne's aunt — her mother's sister but Anne's contemporary — had a password to the same account. Consequently, there was insufficient proof that Anne was the author of every message.
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The record evidence was also unclear about whether Anne's sexually-oriented communications on an internet site when she was around ten years old preceded, or followed the first alleged incident of sexual contact. Marsha testified that in May or June 2009 Anne was caught kissing a boy in the school hallway. Anne admitted that in early September 2011, she had sexual intercourse with a seventeen-year-old boy. Although Anne asserted that the first instance of penile-vaginal penetration by Joseph was on August 22, 2011, the healed vaginal tears were caused long before that.
It was also demonstrated that neither Dr. Gutierrez, nor Dr. Berry-McBride thoroughly examined the documentary record, or viewed the recorded statements. Dr. Berry-McBride did not interview Anne's parents. Dr. Gutierrez reviewed only the complaint in advance of his meeting with Anne. Dr. Berry-McBride relied in part on a trauma symptom checklist for children that Anne completed, although it was not subjected to a validity test to determine the child's veracity. Dr. Berry-McBride expressly stated that her evaluation was not for forensic purposes.
Joseph also called Steven Kairys, M.D., a pediatrician and expert in child abuse, who reviewed the photographic evidence of vaginal and anal tears. Although he conceded that some of the tears may not have been captured on the photographs, he found no anal tears, and only one vaginal tear. The hymen had been ruptured and was not present. He concluded that there had been sexual penetration of the vagina, although it conceivably could have been caused by a finger or other object. He also did not exclude the possibility of anal penetration, which, he said, generally does not result in anal tears.
On the other hand, Dr. Kairys testified that "most of the time" children do not lie about being sexually abused, and it did not appear to him that Anne was lying about the sexual abuse. He testified that sexual precociousness need not be preceded by actual sexual penetration; molestation and treating the child as a sexual object may produce the "behavioral side effects, emotional side effects."
Judge Lois Lipton credited Anne's allegations, which she reviewed at length, and concluded Joseph sexually abused her. In her February 2013 oral opinion, Judge Lipton found that Anne's allegations were sufficiently corroborated under N.J.S.A. 9:6-8.46(a)(4). Corroboration included the following: (1) the opinions of Dr. Gutierrez and Dr. Berry-McBride, who both found Anne's allegation clinically substantiated; (2) Anne's history of sexually inappropriate behavior; and (3) the consistency of her allegations as reported to her mother, the health center nurse, and the SANE. Judge Lipton also questioned whether Anne had a motive to lie; and noted that Marsha's inquiries reflected her own suspicions of sexually inappropriate behavior by Joseph.
On appeal, Joseph presents the following points for our consideration:
POINT I
THE JUDGMENT OF ABUSE AND NEGLECT AGAINST DEFENDANT [JOSEPH] MUST BE REVERSED BECAUSE THERE WAS NO INDEPENDENT CORROBORATION TO SUPPORT [ANNE'S] ACCUSATION THAT [JOSEPH] SEXUALLY ABUSED HER, AS REQUIRED BY N.J.S.A. 9:6-8.46(a)(4).
A. The Expert Opinions.
B. The Inconsistencies in [Anne's] Stories.
C. Precocious Sexual Knowledge.
D. The Medical Evidence.
POINT II
THE JUDGMENT OF ABUSE AND NEGLECT MUST BE REVERSED BECAUSE [JOSEPH] WAS DENIED A FAIR TRIAL BECAUSE THE TRIAL COURT REFUSED TO PERMIT HIM TO OBTAIN A DEFENSE PSYCHOLOGICAL EVALUATION OF [ANNE].
After the notice of appeal was filed, Joseph pleaded guilty to one count of fourth-degree child abuse, N.J.S.A. 9:6-1 and - 3; in return, the State dismissed the remaining first and second-degree sexual assault and child endangerment charges. N.J.S.A. 2C:14-2(a); -2(b); and N.J.S.A. 2C:24-4(a). He admitted that on one occasion between 2009 and 2011, he was home alone with Anne and "smack[ed] her on the butt," which likely endangered her moral well-being. He did not admit to any sexual contact or assault. He was sentenced to two years of probation, after earning 205 days of jail credit. A separate panel of our court denied the Division's motion to dismiss Joseph's appeal based on his plea, and reserved to us the motion to supplement the appellate record with Joseph's plea.
II.
We are bound by the trial court's factual findings if supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We accord particular deference to the Family Court's fact-finding because of the court's "special expertise" in family matters, its feel of the case, and opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, we owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A.
We turn first to Joseph's argument that the judgment must be reversed because Anne's allegations were uncorroborated. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).
Corroboration may include "eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). However, corroborative evidence may be circumstantial, as we have recognized that often there is no direct physical or testimonial evidence to support a child's statements. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid. Physical evidence of assault is certainly corroborative, but it is rare "because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation." Ibid. (internal quotation marks and citation omitted). Corroboration may also be established by evidence of emotional impacts, such as nightmares and other psychological conditions. Ibid. "Evidence of age-inappropriate sexual behavior" may also serve as corroboration. Ibid.
Applying these principles, we discern no error in the court's finding that Anne's allegations were corroborated. The trial court credited the finding of vaginal and anal tears, which was physical evidence of penetration. Anne's precocious sexual knowledge was also corroborative. So, too, were her reports of nightmares, anxiety, and distress. The psychiatric and psychological opinions were competent corroborative evidence; they relied not only on Anne's reports, but the application of the professionals' respective diagnostic expertise. Even if Anne's consistent repetition of her statements is not in itself corroboration of those statements, it is an indication of the statements' trustworthiness. Cf. State v. D.G., 157 N.J. 112, 126 (1999) (stating that consistent repetition is an indication of trustworthiness in analyzing admissibility of abuse allegation under N.J.R.E. 803(c)(27)); State v. Burr, 392 N.J. Super. 538, 570 (App. Div. 2007) (stating that "whether the account is repeated with consistency" is a factor in assessing trustworthiness).
There is no requirement that the corroborative evidence be free from debate. The fact that the physical evidence may have been consistent with consensual sex with another person is, ultimately, of no moment. The fact that Anne's precociousness may have preceded the first incident of molestation goes to the weight of the factor, not its applicability. Joseph's challenge to the opinions of Dr. Gutierrez and Dr. Berry-McBride also goes to the weight of the evidence.
The court credited Anne's allegations after receiving her statement not "through the eyes and ears of another person, but by a videotaped recording that conveyed not only the exact words spoken by the child, but their finer shades of meaning through facial expressions, body movements and inflections of voice." State v. Donegan, 265 N.J. Super. 180, 185-86 (App. Div. 1993). Although the Division did not call Anne to testify, and subject her to cross-examination, the court was able to draw conclusions about Anne's credibility based on her demeanor in the videorecorded statements admitted into evidence. Anne's allegations, corroborated by the evidence we have discussed, were sufficient to support the court's finding of abuse.
B.
We also reject Joseph's argument that the trial court erred in denying his application for a compelled psychological examination of Anne. A trial court has the inherent power to compel a physical or mental health examination of a non-party victim. State v. D.R.H., 127 N.J. 249, 256 (1992) (physical examination); State v. R.W., 104 N.J. 14, 28 (1986) (psychological or psychiatric examination); State v. Gomez, 430 N.J. Super. 175, 181 (App. Div. 2013). However, there is no right to a reciprocal examination, where the State has obtained an examination of a victim. "There is . . . no automatic or per se entitlement to a reciprocal physical examination of a child sex-abuse victim." D.R.H., supra, 127 N.J. at 262.
Even in the context of a criminal prosecution, an examination shall not be compelled absent a showing of substantial need and justification. Id. at 259. A criminal defendant's burden to justify discovery rises in "direct proportion to the nature and extent of the intrusion" into the alleged victim's privacy. State ex rel. A.B., ___ N.J. ___, ___ (Sept. 24, 2014) (slip op. at 16). A "heightened standard of substantial need" is appropriately applied to requests for physical or psychiatric examinations because of the "extraordinary intrusion" involved. Id. at ___ (slip op. at 22). "'The court must balance the possible emotional trauma, embarrassment, and intimidation to the complainant . . . against the likelihood that the examination will produce material, as distinguished from speculative, evidence.'" D.R.H., supra, 127 N.J. at 259 (quoting R.W., supra, 104 N.J. at 28).
The defendant's rights must "clearly outweigh[] the victim's or witness's rights." Gomez, supra, 430 N.J. Super. at 184. The court must consider the victim's constitutional and statutory rights to be treated with compassion and respect, and to be free from harassment and preventable inconvenience. Id. at 185-86 (discussing the Victim's Rights Amendment, N.J. Const. art. I, ¶22, and the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38). However, the rights of an accused and an alleged victim must be harmonized, as the alleged victim's rights do not diminish the rights of a criminally accused. A.B., supra, ___ N.J. at ___ (slip op. at 18-19).
The requesting party must present a "sufficient showing that such an examination can produce competent evidence that has substantial probative worth, and if admitted and believed by the trier of fact, that evidence could refute or neutralize incriminating evidence or impugn the credibility of prosecution witnesses." D.R.H., supra, 127 N.J. at 260-61; see also A.B., supra, ___ N.J. at ___ (slip op. at 18). A requesting party must show that evidence otherwise available is insufficient to protect his due process rights to present a defense. Gomez, supra, 430 N.J. Super. at 188.
Against this backdrop, we discern no abuse of the trial court's discretion. See, e.g., State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009) (stating that an appellate court reviews a trial court's ruling denying discovery for abuse of discretion), aff'd 201 N.J. 229 (2010). Joseph essentially presented nothing more than a claim for reciprocal treatment. Inasmuch as Anne had been examined by mental health professionals that the Division identified, he argued he was entitled to obtain an examination by an expert he selected. However, D.R.H. soundly rejects the notion that there is a right to reciprocal examinations. Much more is required. Yet, Joseph offered no competent evidence from an expert that a meaningful assessment of Anne's mental condition could not be offered based on the voluminous materials, assessments, and examinations already conducted. See Gomez, supra, 430 N.J. Super. at 188 (noting that the defendant failed to show that existing records were insufficient to enable expert to assess the nature of victim's injuries). Significantly, Joseph's own pediatric expert was able to opine not only on the physical signs of sexual activity, but also the likelihood that Anne fabricated the claim of abuse.
In sum, Joseph was not deprived of a fair trial as a consequence of the court's denial of his request for a mental health examination.
c.
Although not essential to our decision, we deny the State's motion to supplement the record, and we accord no weight to Joseph's plea. Joseph did not admit to sexually assaulting Anne. We recognize that he admitted he was home alone with her on one occasion, which apparently contradicted a statement by Marsha that he was never alone with her. However, a plea of guilty is merely evidential, and not preclusionary. Eaton v. Eaton, 119 N.J. 628, 644 (1990). More importantly, admission of such evidence at this stage would deprive Joseph an opportunity to explain it.
Joseph's remaining arguments, to the extent we have not addressed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION