Opinion
DOCKET NO. A-4430-10T3
04-24-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.V ., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez, and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-06-00974.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant L.V. (Larry) appeals his conviction on two counts of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)), two counts of second-degree aggravated sexual assault (N.J.S.A. 2C:14-2(b), (c)), and one count of second-degree endangering the welfare of a child (N.J.S.A. 2C:24-4). Larry also appeals his aggregate sentence of incarceration for twenty years, subject to the mandatory eighty-five percent parole-ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
R.V. (Robin) was born in Mexico in February 1988. She lived there with her mother, who died when she was two years old, and subsequently with her grandmother. When she was five years old, she moved to Lakewood to live with Larry, her father, and E.V. (Evelyn), her stepmother, as well as Evelyn's children and mother. Robin's aunt and her daughter, L.F. (Lori), also moved to the family's home when Robin was five.
According to Robin, Larry began sexually abusing her, by vaginal penetration, when she was six. He told her his behavior was "a secret between father and daughter." Robin testified that this conduct occurred "[e]very time he had a chance when he knew nobody was home."
Initially Robin believed Larry when he told her such conduct was "normal." She began to feel "really bad" when she learned, at age seven, that such behavior was "bad" and "a sin," and she would "cry" and "tell [Larry], 'It's a sin.'" She testified that Larry would hit her with a belt if she "wouldn't cooperate." He told her he would kill her and Evelyn if she told anyone about his conduct.
Lori, Robin's cousin, testified that she began living in the same house with Robin when both girls were five years old. According to Lori, Robin slept in a room with two doors, one that led to the kitchen and another that led to her parents' room. There were "locks on both doors" and Larry was "the only one [who] had the keys." Lori also testified that she witnessed Larry hit Robin on more than one occasion.
Evelyn testified that she witnessed Larry exposing his genitals to Robin when Robin was approximately six years old. Evelyn "got mad" and "yelled" at him. In response, Larry "pushed [Evelyn] on the sofa," "turned [over] the coffee table and left." She confronted him when he returned, but he "laughed" and stated, "Well, you know what, you got to prove it." Evelyn testified that she saw Larry touching Robin's chest on another occasion. When she confronted him, "he said [she] was crazy."
Lori testified that Robin told her and another friend in school that Larry was "doing stuff that wasn't right" to her. Lori believed they were overheard by another student, who told an adult. Shortly thereafter Robin was taken to Mexico by her father. Evelyn described Larry's departure with Robin, who was about nine years old, as "sudden."
According to Evelyn, shortly after Larry left for Mexico with Robin, "[s]omebody from the division for the kids," presumably the then Division of Youth and Family Services (DYFS), came to the house in Lakewood looking for Larry regarding a complaint involving Robin.
Robin testified that she did not tell her grandmother in Mexico about the abuse because she was afraid that Larry would carry out his threat of killing anyone she told, including "his mother if he had to." According to Robin, everyone in the family was afraid of Larry because he was violent. Robin stayed in Mexico for approximately four years.
At some point while Robin was living in Mexico, Larry returned to New Jersey. When Robin was thirteen, Larry arranged for her to return to Lakewood to live with him and Evelyn. According to Robin, the abuse resumed as before. In addition, Larry touched her breasts and vagina with his hands. Although she would cry and "tell him not to," Robin said she acquiesced when Larry threatened her.
Robin and Larry subsequently moved to Cliffside Park without Evelyn. After seven months, Robin went to live with Evelyn in Lakewood for a year. Larry then returned to Lakewood. According to Evelyn, Larry got an apartment in the area so they could "start living as a family again." Although she did not want to move back in with him, she "eventually" did so because he said he would take Robin away from her if she refused. Robin was about fifteen years old at the time.
Robin testified that, after she and Evelyn started living with Larry again, Larry told her that she was "going to let [him] do it at least one day a month" or he would "go to Texas." She replied, "Leave to Texas. I don't care." After that, "whenever he had a chance," Larry would force her to have intercourse with him. Larry also performed oral sex on her. He became "more . . . possessive" and would "try to kiss [her]." He became angry if she refused. On cross-examination, Robin explained that her use of the term "possessive" referred to times when Larry "wouldn't let [her] go out with [her] friends." Robin's cousin Lori testified that, in March 2005, Robin showed her belt marks on her body and said Larry had caused them by hitting her.
Robin testified that Larry's final act of sexual assault occurred on June 14 or 15, 2005. After she returned home from school, Larry had intercourse with her twice. He ejaculated on her stomach the first time and on her back the second. She testified that both incidents took place on the floor of the bedroom she shared with Evelyn and Larry, on top of a white floral blanket.
The room contained a bed for Evelyn and Larry, with an air mattress on the floor for Robin. Robin testified that the floral blanket was hers alone, and that the parents had their own blankets on their bed. Evelyn testified that she had never engaged in sexual intercourse with Larry on the floral blanket, which she described as Robin's.
Robin had previously confided in C.F. (Carol), her best friend at the time, who had encouraged Robin to tell someone about the abuse. After the last incident, Robin agreed to do so. Carol told her uncle about the abuse, and he reported it to the police.
On June 16, 2005, Lakewood Police Officer Christopher Spagnulo went to Robin's home in response to the report made by Carol's uncle. Larry was not there. After sensing Robin's discomfort at being interviewed in Evelyn's presence, Spagnulo spoke with Robin alone.
While Spagnulo was interviewing Robin, Evelyn called Larry and told him that Robin was talking with the police. Although Larry told her that he would come home, he disappeared instead. A few days later, Evelyn telephoned Larry. He asked her whether the police were looking for him, but refused to tell Evelyn where he was. Larry was eventually arrested in Texas in July 2008.
The floral blanket was secured and tested positive for semen. The DNA profile of the semen matched Larry's DNA sample. The blanket also contained pubic hair similar to pubic hair from a pubic combing performed on Robin during the physical examination conducted as part of the investigation. The pubic hair did not match Larry or Robin. Although not disclosed to the jury, the prosecutor conceded that Robin had consensual intercourse with a third party on June 16, after the last alleged sexual assault and before the blanket was retrieved for the investigation.
Larry was indicted in June 2006. Pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7, before trial, defense counsel sought leave to introduce evidence of Robin's consensual sexual relationship with her boyfriend. The judge denied the application.
See also N.J.R.E. 412.
The case was tried before a jury on five trial days during June 2010. The jury found Larry guilty on all counts. He was sentenced on January 21, 2011. In addition to the aggregate twenty-year term subject to NERA, Larry was required to comply with the provisions of Megan's Law, N.J.S.A. 2C:7-2. This appeal followed.
Larry was originally also sentenced under Nicole's Law, N.J.S.A. 2C:14-12 and 2C:44-8, which permits issuance of a restraining order to protect the victim of a sex offense. Larry was re-sentenced on February 4, 2011, because Nicole's law was not applicable at the time he committed the offenses. However, the judge issued a no-contact order at the State's request.
II.
Larry raises the following issues on appeal:
POINT I: THE TRIAL JUDGE INAPPROPRIATELY BARRED DEFENDANT FROM: (A) INTRODUCING EVIDENCE THAT THE ALLEGED VICTIM HAD WRITTEN HIM COMPLIMENTARY/ADORING LETTERS, THEREBY CALLING INTO QUESTION HER TALE OF SEXUAL ABUSE AT THE HANDS OF THE SAME MAN SHE WAS ADDRESSING IN THOSE LETTERS, AND (B) INTRODUCING EVIDENCE THAT THE VICTIM HAD A BOYFRIEND WHO MAY HAVE BEEN EITHER THE SOURCE OF SEMEN ON A BLANKET THAT WAS IN EVIDENCE OR, AT A MINIMUM, THE SUBJECT OF ARGUMENTS BETWEEN HER AND DEFENDANT.
A. The Exclusion of the Letters
B. The Erroneous Rape-Shield-Law (RSL) RulingPOINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND COUNTS SHOULD BE MERGED.
C. Cumulative Error
A.
We start our discussion with Larry's challenges to the trial judge's evidentiary rulings concerning (1) the pubic hair found during the investigation and Robin's relationship to her boyfriend and (2) two letters written by Robin to Larry, one dated two years and the other dated seven months before the last sexual assault charged in the indictment.
With respect to evidential rulings, our standard of review is abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007). "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (internal quotation marks omitted). The same standard is applicable in cases involving the Rape Shield Law. See State v. J.A.C., 210 N.J. 281, 295 (2012).
i.
Defense counsel sought to develop evidence that the pubic hairs from the combing and the floral blanket belonged to Robin's boyfriend, with whom she was sexually active. He also sought to develop evidence that shortly before Larry's alleged assaults were reported to the police, Larry and Robin had argued because Larry did not approve of her relationship with the boyfriend, suggesting that her accusations were motivated by anger. The State argued that the evidence was irrelevant and its introduction was barred by the Rape Shield Law.
N.J.S.A. 2C:14-7(a) (emphasis added) provides as follows:
In prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of a child . . . . evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly material and meets the requirements of subsections c. and d. of
this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.
The Supreme Court has narrowed the scope of the Rape Shield Law in light of its purposes and a defendant's constitutional right to a fair trial. See State v. J.D., 211 N.J. 344, 356-58 (2012). As explained in J.A.C., supra, 210 N.J. at 298-99, the Court has eliminated the statutory requirement that such evidence be "highly material" and that its relevance "substantially outweigh" the collateral nature of the evidence as well as its prejudice to the victim. In J.A.C., the Court noted that
N.J.S.A. 2C:14-7 serves "to protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant." State v. Schnabel, 196 N.J. 116, 128 (2008) (quoting [State v. Garron, 177 N.J. 147, 165 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)]). The statute guards against "unwarranted and unscrupulous foraging for character-assassination information about the victim." State v. P.S., 202 N.J. 232, 261 (2010) (quotation omitted).The Court explained its interpretation and outlined the parameters of the analysis required by the statute as follows:
[Id. at 295.]
The Legislature's expression of policy is subject to constitutional constraints. The United States and New Jersey Constitutions ensure to criminal defendants "'a meaningful opportunity to present a complete defense.'" Garron, supra, 177 N.J. at 168 (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)). As the Court noted in Garron, the constitutional rights of confrontation and compulsory process have "long been recognized as essential to the due process right to a 'fair opportunity to defend against the State's accusations,' and thus [are] 'among the minimum essentials of a fair trial.'" Id. at 169 (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973)). These rights, however, are "not absolute, and may, in appropriate circumstances, bow to competing interests." [State v. Budis, 125 N.J. 519, 531 (1991)] (citing Chambers, [supra,] 410 U.S. at 295, 93 S. Ct. at 1046, 35 L. Ed. 2d at 309). The Court afforded to trial courts "wide latitude . . . to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 532 (quotation omitted).
In Budis and Garron this Court departed from the literal language of N.J.S.A. 2C:14-7(a), which requires evidence of a victim's previous sexual conduct to be "relevant and highly material," and to have probative value that "substantially outweighs" its
collateral nature or prejudicial effect. In Budis, the Court held that to avoid a violation of the federal and New Jersey constitutional rights to confrontation and compulsory process, N.J.S.A. 2C:14-7 should be construed to permit evidence of a victim's sexual conduct if "the evidence [is] relevant to the defense . . . [and] its probative value outweighs its prejudicial effect." Budis, supra, 125 N.J. at 532. That test was reaffirmed and refined in Garron, in which the Court held that "evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact," and concluded that "evidence that is relevant and necessary to prove the defense of consent," which was at issue in that case, would be admitted. Garron, supra, 177 N.J. at 172-73.
On the first component of the test -- the relevancy of the evidence at issue -- the definition of relevance found in N.J.R.E. 401 provides guidance: "'[r]elevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See also State v. Cuni, 159 N.J. 584, 601 (1999). The trial court evaluates the nexus between the evidence protected by N.J.S.A. 2C:14-7 and the issues to be decided by the factfinder. In Budis, for example, the Court identified two respects in which the evidence in dispute -- the victim's prior sexual abuse by her stepfather -- was potentially relevant to the child sexual abuse case at issue: "[f]irst, [the evidence] rebuts the inference that [the victim] acquired the knowledge to describe sexual matters from her experience with defendant [and] [s]econd, the evidence is relevant to show that [the victim] had the knowledge to initiate the sexual acts as described by
defendant." Budis, supra, 125 N.J. at 534 (citation omitted).
Similarly, this Court considered the precise relationship between the evidence proffered in Garron, a history of flirtatious and suggestive communication between the defendant and the victim, and the contentions of the defendant. It noted that "[h]ow defendant's prior relationship with [the victim] affected his state of mind was critical to the ultimate determination of the jury" on the pivotal issue of consent. Garron, supra, 177 N.J. at 173-74. The first prong of the test thus requires the trial court to determine whether evidence covered by N.J.S.A. 2C:14-7 is relevant and necessary to resolve a material issue, taking into account the other evidence that is available to address that issue.
The second prong of the analysis set forth in Budis and Garron requires the court to balance the probative value of the contested evidence against its prejudicial impact. The "probative value" of evidence is "its tendency to establish the proposition that it is offered to prove." Garron, supra, 177 N.J. at 167 n.2 (citing State v. Wilson, 135 N.J. 4, 13 (1994)). The probative value of sexual conduct covered by N.J.S.A. 2C:14-7 "depends on clear proof that [the conduct] occurred, that [it is] relevant to a material issue in the case, and that [it is] necessary to a defense." Budis, supra, 125 N.J. at 533 (citing State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325, 335 (1990)). There is, accordingly, substantial overlap between the relevancy determination that is the first step of the Budis and Garron test, and the measure of the "probative value" for purposes of the second step.
For purposes of this analysis, the potential "prejudice" of evidence encompasses its impact upon the victim of sexual abuse whom N.J.S.A. 2C:14-7 was enacted to protect -- in this case a child. "[T]he court should consider the likely trauma to the child and the degree to which admission of the evidence will invade the child's privacy," and "guard against excessive cross-examination" of the victim. Budis, supra, 125 N.J. at 533. Consistent with the balancing test of N.J.R.E. 403, a trial court should consider the impact of a given ruling on a victim reporting sexual abuse, and should guard against jury confusion and misleading inquiry. As the Court noted in Budis, evidence of a child's sexual activity "may divert the jury's attention from the behavior of the defendant to that of the victim. For example, the evidence may mislead a jury to conclude that one who assaults a more sexually experienced child is not culpable, especially if the child initiated the encounter." Id. at 534. N.J.S.A. 2C:14-7 and the case law mandate caution in the use of evidence with the potential to distract the jury from the material issues before it.
In short, in accordance with our construction of N.J.S.A. 2C:14-7, trial courts are required to carefully weigh the relevance, necessity and impact of evidence relating to a victim's sexual history, and to impose case-specific parameters, where appropriate, to any such evidence admitted.
[Id. at 298-301.]
For the purposes of this case, the applicable subsection of N.J.S.A. 2C:14-7 is (c), which provides that the use of "[e]vidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." Because the subsection's list of subjects that may be material "is illustrative rather than exhaustive," State v. Scherzer, 301 N.J. Super. 363, 412 (App. Div.), certif. denied, 151 N.J. 466 (1997), the source of the pubic hair is potentially material.
The trial judge determined that the source of the pubic hair was not relevant or material because it did not undercut the evidence that Larry's semen was found on the blanket. She also noted that the jury would be told that the pubic hair was not consistent with the sample taken from Larry. Consequently, she refused to permit questioning concerning Robin's relationship with her boyfriend and precluded any mention of boyfriends.
We find no abuse of discretion in the judge's determination to exclude questions about sexual activity between Robin and her boyfriend. Taking into account the purposes underlying the Rape Shield Law, Robin would have been prejudiced by questioning about a consensual sexual relationship that had no direct relevance to the issue of whether she was sexually assaulted by her father. In addition, as the Court held in Budis, supra, 125 N.J. at 534, evidence of this sort can distract the jury from the conduct of the defendant.
The semen on the blanket was identified as Larry's. There was no contrary evidence. The laboratory report clearly stated that the pubic hair was not Larry's and the jury was so informed, so there was no way the finding of pubic hair could have incriminated him.
The presence of a boyfriend's pubic hair on the blanket does not explain or detract from the presence of Larry's semen on the blanket, nor does the fact that Robin was having sexual relations with an unrelated male demonstrate that she was not being sexually abused by her father.
Although it was suggested in argument that it would not be unusual for someone's semen to be found on a blanket in his bedroom, the only testimony on the issue was from Evelyn, who testified that it was Robin's blanket and that she and Larry had never used it during intercourse.
We disagree with the judge's ruling only to the extent she subsequently prohibited defense counsel from developing Larry's assertion that he and Robin argued over his disapproval of her having a boyfriend or dating. That fact could have been developed without specific reference to any sexual activity. In fact, the testimony that another male's pubic hair was found on Robin and the blanket, which the judge allowed, itself suggested that Robin was sexually active with someone else.
Nevertheless, we find the error harmless. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. The harmless error standard requires that there be "some degree of possibility that [the error] led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)).
During his opening statement, defense counsel raised the fact that male pubic hair not belonging to Larry was found during the pubic combing. It was also mentioned during summation, at which time defense counsel pointed out that, although a third person's pubic hair was found during the pubic combing, no pubic hair belonging to Larry was found. He further reminded the jury that pubic hair belonging to a third person was also found on the blanket. In addition, defense counsel developed during cross-examination that Larry would not let Robin "go out with [her] friends."
ii.
We now turn to the issue of the excluded letters. Larry sought to question Robin about two seemingly affectionate letters he received from her in 2003 and 2004. He argued that they undercut the credibility of her assertions that he was sexually abusing her at that time.
The letters were as follows:
For my father, from your daughter.
Dear father,
Today, on this Father's Day, I want to wish that you will have a happy day. Well, I hope that you will like what I am about to tell you. You're a person of great worth. I hope some day I can understand you and know that everything that you have done for me is for my good. I love you even though it is not noticeable. You know you gave me life, and with that, it's enough, and even more to love you.
Once more, I want to tell you that I am grateful for everything that you have done for me as a father. Forgive me for being somewhat mean to you and the things that sometimes I say to you. I also want you to forgive me for not being the daughter that you wish you had. You know I have tried so many times to be a perfect daughter to you, but I cannot. Forgive me for that.
Well, with these words, I end this letter. I say good-bye. And thank you for everything. I love you.
Your daughter,For my father, from your daughter,
[Robin]
On this day, I wish you to have a beautiful day, and I want to tell you that I love you very much, and I wish you a happy birthday. I want you to know that in spite of that I am spoiled, I love you very much. You are my father and the most important thing that I have in this life. You are the person for whom I want to go ahead in life. Thanks to you, I'm a good person. Thanks to you, I know what is good and what is wrong. I love you in spite of that sometimes you are a little grouchy. You are the pillar
that has helped me to be straight, and for that I love you more. I love you with your flaws and your virtues. I love you as you are.
You are the example that drives me to do things the right way. You are my father, and I am proud that you have been able to take care of me. You always will have to know that I love you in spite of how bad I am to you. But behind that mask, there's only love. I wish that you have a happy time.
I love you,
Your daughter.
The letters were not produced to the State until late in the trial, after Robin and most of the State's other witnesses had testified. According to defense counsel, Larry had given them to his first attorney, who returned them to Larry when she discontinued the representation prior to trial. Neither Larry nor prior counsel brought them to the attention of his new trial attorney. Larry finally mentioned them to his trial counsel one or two days before they were disclosed to the prosecutor and the trial judge.
The judge considered the letters to be "minimally relevant," and excluded them because they were presented so late in the trial that the State would not have had sufficient time to procure an expert witness on Child Sexual Abuse Accommodation Syndrome to rebut them. The judge declined to allow use of the letters without giving the State an opportunity to obtain an expert, and declined to permit an adjournment for that purpose so late in the trial.
See State v. W. B., 205 N.J. 588, 609-11 (2011).
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A trial judge's response where "there has been a failure to disclose [discoverable] material," is guided by Rule 3:13-3(g). State v. Bradshaw, 195 N.J. 493, 503 (2008). That rule provides that the judge may "grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g). "[A]s with any discovery rule violation, the trial judge enjoys broad discretion to determine what sanctions, including preclusion of evidence, should be imposed." Scherzer, supra, 301 N.J. Super. at 417.
"The exclusion of evidence is reversible error only if it is critical to the defense, as where there was no other available evidence to demonstrate particular defense issues." Id. at 414. In Scherzer, we outlined the following criteria in the context of a defendant's late proffer of evidence concerning the victim's prior sexual activity:
Whether exclusion is an appropriate sanction, depends on the balancing of relevant factors by the courts. Those factors include: (1) was defendants' discovery violation due to willful misconduct (e.g., was it a tactical decision); (2) would a mid-trial proffer have caused unfair surprise to the State;The Supreme Court subsequently outlined a similar test for weighing a defendant's failure to give notice of an alibi as required by Rule 3:12-2(b).
(3) were there alternatives to exclusion (e.g., recess, continuance, prosecutorial comment on discovery violation) and (4) the impact of witness preclusion on the outcome of the trial.
[Id. at 418 (citations omitted).]
[T]he trial court should consider: (1) the prejudice to the State; (2) the prejudice to the defendant; (3) whether other less severe sanctions are available to preserve the policy of the rule, such as a continuance or a mistrial to permit the State to investigate the alibi; and (4) whether the defendant's failure to give notice was willful and intended to gain a tactical advantage. Absent a finding that the factors on balance favor preclusion, the interest of justice standard requires a less severe sanction.In Bradshaw, the Court found that exclusion of the defendant's own alibi testimony was inappropriate because he had no other evidence that he was not present at the scene of the crime, the prosecutor had suggested a continuance, and the discovery violation was not willful. Id. at 508-09.
[Bradshaw, supra, 195 N.J. at 507-08.]
In State v. Dimitrov, 325 N.J. Super. 506, 510 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), we reversed the trial judge's exclusion of testimony by an exculpatory witness who was first identified to the State on the morning of trial. After defense counsel proffered the evidence, the prosecutor proposed a one-week adjournment so that she could arrange for another witness to testify for the State. Id. at 509, 511. The judge excluded the defense testimony rather than adjourn the trial. Id. at 510. We reversed the resulting conviction, holding it was "not tenable in the circumstances . . . especially given the alternatives available, . . . that defendant may have been convicted because he was precluded from presenting" testimony supporting a complete defense to the crimes charged. Id. at 512.
In contrast, in State v. Marshall, 123 N.J. 1, 129-30 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), the Supreme Court upheld the trial judge's exclusion of a witness the defendant sought to add after the State rested. The trial judge barred the testimony because it was unfair to the State, which might have had difficulty "effectively cross-examin[ing]" the witness or been unable to "locate and prepare" a rebuttal witness, and because the exclusion of the testimony "did not preclude defendant from offering comparable evidence or from arguing" his alternate theory. Ibid.
Nothing in the record supports the State's contention on appeal that there was a willful violation of discovery rules in this case, nor did the trial judge find such a violation. In addition, we disagree with the trial judge's characterization of the letters as "minimally" relevant. The letters had the potential to undermine Robin's claims that Larry had abused her prior to the dates the letters were written.
However, we agree with the trial judge that admission of the letters at such a late stage in the trial would have been unfair to the State if it were not given the opportunity to offer an expert to explain Child Sexual Abuse Accommodation Syndrome. There is nothing in the record to support defense counsel's assertion that the State could have found such an expert in just a few days. In Dimitrov, supra, 325 N.J. Super. at 510-511 (quoting State v. Sanchez, 143 N.J. 273, 291 (1996)), we noted that "[w]hen . . . substantially exculpatory testimony is at stake, procedural convenience is not an adequate justification for a trial court's decision that precludes a defendant from calling [a witness]." Here, however, the trial had almost ended and a delay of uncertain length was more than "a procedural [in]convenience" at that point.
Consequently, we conclude that the trial judge did not err in prohibiting use of the letters.
iii.
Finally, Larry argues that the cumulative effect of the two errors warrants a new trial, even if neither alone would do so.
Reversal may be warranted when a defendant is denied a fair trial due to the cumulative effect of errors that by themselves are harmless. State v. Timmendequas, 161 N.J. 515, 639 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Orecchio, 16 N.J. 125, 129 (1954). The case before us does not warrant such a reversal.
Because we conclude that Larry was not denied a fair trial, we affirm his conviction.
B.
We now turn to Larry's challenges to the sentence. He argues that the trial judge should have merged the counts alleging first-degree and second-degree sexual assault of a child under age thirteen because there was "no indication from the verdict that the jury viewed the offenses . . . to have occurred at separate times." He also argues that the overall sentence was excessive.
N.J.S.A. 2C:1-8(a)(1) bars a defendant from conviction for "more than one offense" where "[o]ne offense is included in the other." An offense is included in another if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). Merger does not apply to related offenses if "each requires proof of a fact not required by the other." State v. Truglia, 97 N.J. 513, 521 (1984).
We are satisfied that the charges did not merge. N.J.S.A. 2C:14-2(a) requires sexual penetration, while the sexual contact element under N.J.S.A. 2C:14-2(b) has been defined as the actor "touch[ing] himself or herself," the actor "touch[ing] the victim," or the victim "touch[ing] the actor." State v. Zeidell, 154 N.J. 417, 428 (1998). There was evidence in the record that, during the applicable time frame, Larry engaged in acts of sexual penetration and sexual contact on separate occasions. Specifically, Robin testified about incidents of sexual penetration. Evelyn testified that she witnessed Larry expose his penis to Robin, and both Evelyn and Robin testified to inappropriate touching.
With respect to the length of the sentence, the trial judge found aggravating factors three (risk of committing another offense) and nine (need to deter), N.J.S.A. 2C:44-1(a)(3) and (9), as well as mitigating factor seven (lack of prior criminal history), N.J.S.A. 2C:44-1(b)(7). Given Larry's apparent lack of remorse, as evidenced by his conduct when Robin spoke at sentencing and by a psychological evaluation, and the fact that he had some prior municipal convictions, the judge found that the aggravating factors significantly outweighed the mitigating factor.
Having reviewed Larry's arguments that the sentence was excessive in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we also affirm the sentence on appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION