Opinion
DOCKET NO. A-0285-10T2
02-14-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.J.C., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Rahman Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian J. Uzdavinis, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-05-0878.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Rahman Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian J. Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant R.J.C. appeals from a judgment of conviction (JOC) dated February 5, 2010, following his September 2009 conviction by a jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and associated other offenses. He also appeals from the aggregate sentence of thirty-four years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; second-degree sexual assault by a person more than four years older than the victim, N.J.S.A. 2C:14-2b; and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a.
On this appeal, defendant presents the following points for our consideration:
POINT I: THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS AS SUBJECTING R.J.C. TO FOUR TRIAL VIOLATED PRINCIPLES OF DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I., PARAS 1, 11.Having reviewed the record, we conclude that these arguments are without merit. Accordingly, we affirm the conviction and the sentence.
POINT II: THE TRIAL JUDGE FAILED TO CONTEMPORANEOUSLY CAUTION THE JURY AS TO THE LIMITED PERMISSIBLE USE OF "FRESH COMPLAINT" EVIDENCE. (Not Raised Below)
POINT III: THE TRIAL JUDGE FAILED TO CONTROL THE SCOPE OF THE STATE'S EXPERT TESTIMONY AND COMPOUNDED THE PROBLEM WITH AN INADEQUATE CHARGE. (not raised below)
POINT IV: R.J.C. DID NOT RECEIVE A FAIR TRIAL UNIMPAIRED BY CONFLICTING INTERESTS OR DIVIDED LOYALTIES.
POINT V: THE TRIAL JUDGE IMPROPERLY PREVENTED TESTIMONY IMPORTANT TO THE DEFENSE'S THEORY OF THE CASE.
POINT VI: THE CUMULATIVE EFFECT OF THE PRECLUSION OF TESTIMONY AND OTHER TRIAL ERRORS PREJUDICED R.J.C. AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT VII: THE TRIAL JUDGE FAILED TO FIND EXISTING MITIGATING FACTORS AND FAILED TO PROPERLY WEIGH AGGRAVATING FACTORS IN ARRIVING AT THIS EXCESSIVE SENTENCE.
I
Defendant was indicted in May 2000 for allegedly sexually assaulting his step-daughter, S.E., in February 2000, and for allegedly sexually assaulting another step-daughter, W.E., on dates between 1995 and 1997. He was tried four times: the first trial resulted in a hung jury in 2001. On the 2003 re-trial, he was convicted, but we reversed the conviction due to the improper exclusion of evidence that one of the victims had a genital wart but defendant did not. State v. R.J.C., No. A-4564-03 (App. Div. Dec. 7, 2006), certif. denied, 189 N.J. 648 (2007) (R.J.C. I). A 2008 re-trial resulted in a hung jury.
Prior to his fourth trial, defendant filed a motion to dismiss the indictment and bar the re-trial on fundamental fairness grounds. See State v. Abbati, 99 N.J. 418 (1985). The trial judge, who had presided over all three prior trials, denied the motion in a lengthy oral opinion. Defendant moved for leave to appeal. We granted defendant's motion, thoroughly considered his arguments, and affirmed the trial judge's decision on the merits. State v. R.J.C., No. A-2775-08 (App. Div. June 3, 2009) (R.J.C. II). The next re-trial resulted in a conviction and gave rise to this appeal.
This was the most pertinent evidence presented at the 2009 trial. The alleged assaults occurred while defendant's step-children, W.E. and S.E., were living with defendant and the children's biological mother, M.D. By the time of the 2009 trial, W.E. was twenty-two years old. W.E. testified that when she was nine, she and her sister moved out of their grandmother's home, where W.E. had lived all her life, and began living with M.D. and defendant. For about a year, W.E. slept in M.D.'s and defendant's bed, because she was used to sharing a bed when she lived in the grandmother's crowded home, and she felt more comfortable sleeping with someone else. W.E. also spent a lot of time with defendant, because her mother worked at night.
W.E. described in considerable detail how defendant began molesting her, first by touching her genital area over her clothing, and later by forcing her to have intercourse with him. On occasion, he also penetrated her with a finger and forced her to have oral sex with him. According to W.E., although she was in pain and sometimes bleeding, she did not tell anyone because she was ashamed and embarrassed. She was also afraid that if anyone found out, she and her sister would be taken from their mother's custody and she would "lose [her] mother."
The molestation continued for about a year, until she stopped sleeping with her mother and defendant. W.E. testified that she did not tell anyone about the molestation until she was in sixth grade, when she told her best friend, L.R. Later, after she overheard her sister, S.E., telling another friend that defendant had raped her, W.E. told S.E. that defendant had victimized her too. Both girls confronted defendant with what he had done to them. According to W.E., defendant said "how sorry he was, and how he would never hurt us again, and . . . you always hurt the ones you love."
On another occasion, when the girls told defendant that they were going to tell their mother what had happened, defendant became angry and threatened that if they did so, it would be reported in the newspapers, and everyone, including all their friends, would find out about it. W.E. was intimidated by his threats. She did not tell the police about the molestation until she was fourteen years old.
The other sister, S.E., was twenty-five years old at the time of the 2009 trial. She also gave graphic testimony about the ways in which defendant sexually molested her, after she and W.E. moved in with their mother and defendant. At the time of the move, in 1996, S.E. was twelve years old. In 1997, when she was thirteen and going through puberty, defendant started grabbing her breasts and making inappropriate comments about her body. In one incident, he started taking her clothes off, purportedly to show her how beautiful her body was. He also forced her to let him take pictures of her, naked from the waist down, claiming that he wanted to document whether her hymen was still intact. He then forced her to touch his penis and "masturbate him," by threatening to "post [the pictures] in the barbershop" if she refused. Defendant also took a video of S.E. with her shirt off and showed her naked photographs of himself. The video and the photos were introduced in evidence.
S.E. described, in detail, several later incidents in which defendant raped her and forced her to engage in oral sex. Defendant threatened her that if she told anyone, they would "both be in trouble" and she "would have to move back to [her] grandmother's." She was afraid to tell anyone what he had done. However, at some point, S.E. told a close friend, V.E., and later, in the fall of 1999, she told an adult, A.A., who worked at the high school she attended.
M.D. testified that in 1996, she and defendant bought a house together so that she could "get the kids back" from their paternal grandmother's home. She confirmed that W.E. used to sleep with her and defendant, and that defendant cared for the children while she worked the night shift at a casino. In December 1999, S.E. told M.D. that defendant "had been molesting her." According to M.D., she did not learn that W.E. had also been "involved" until after the police came to the house to investigate. After defendant was arrested, he called M.D. repeatedly to say "[t]hat he was sorry that he hurt me and that he hurt our family, and that he was sick and he needed help."
M.D. also testified that after his arrest, defendant asked her to look in the house for a metal box that he told her contained savings bonds. In the summer of 2001, she found a locked box in the garage. Her son broke the lock, in her presence, and in the box they found "[s]exually explicit" photographs. She gave the photos to the police.
Sergeant Davis later identified the box, which contained defendant's birth certificate and photos of naked women.
On cross-examination, M.D. admitted that she did not immediately go to the police when S.E. told her that defendant was molesting her. Instead, she tried to contact A.A. at the high school. M.D. testified that she "didn't know what to do." Meanwhile, she continued to let defendant stay home alone with the children. She testified that at one point she briefly considered leaving defendant, and packed her bags. However, he took her car keys to prevent her from leaving, and she abandoned that plan. M.D. also testified on cross-examination that she never had any genital warts.
The State presented testimony from Dr. Deborah Lowen, an expert in child abuse pediatrics. Dr. Lowen examined both S.E. and W.E. in March 2000, "[t]o evaluate and treat any possible problems as a result of possible sexual abuse." Dr. Lowen testified briefly that when she took S.E.'s medical history, the history included "allegations . . . of sexual penetration." In examining S.E., Dr. Lowen found a partial tear to the hymen, which had healed, evidencing "penetrating vaginal trauma." However, the doctor could not determine "who caused it or when it occurred," because S.E. told her that she "had had consensual sexual intercourse in addition to abusive sexual intercourse."
Dr. Lowen also found a genital wart near S.E.'s hymen. She explained that genital warts are caused by various types of human papilloma virus (HPV), and the virus is commonly transmitted through sexual contact. She testified that condoms do not always prevent transmission, and a person infected with the virus would not always have "visible warts." She explained that warts can also "come and go" over time. Therefore, if a woman has a visible genital wart, "but her male sexual partner does not have a visible wart," that would not exclude him as the source of the woman's infection. Nor would the absence of visible genital warts in the man's other sexual partners exclude him as the source. Dr. Lowen explained that "people with visible warts are basically the tip of the iceberg [among] all the people who have HPV."
Dr. Lowen also examined W.E. and found that she had a healed tear of the hymen. However, she could not opine as to who caused that tear or when it occurred. On cross-examination, Dr. Lowen agreed that she could not tell from the physical examination whether either S.E. or W.E. had been sexually abused, but she explained that "the exam is not for the purpose of proving whether a child has been sexually abused." She also agreed that HPV was highly contagious, but insisted that the absence of a wart did not mean that a person was "negative for HPV."
At defense counsel's request, immediately after Dr. Lowen's testimony, the trial judge gave the jury a lengthy limiting instruction. Among other things, he told the jurors that they could only consider Dr. Lowen's testimony concerning "what she saw physically when she examined" the girls and "the possible inferences that could be drawn from what she saw physically." He strongly cautioned them that "[a]ny opinion she may have . . . that the children were in fact sexually abused must be disregarded by you." There was no objection to the wording of the limiting instruction.
The State also presented brief fresh complaint testimony from the victims' friends, L.R. and V.E. In the final jury charge, the judge gave a very extensive instruction concerning the limited purpose for which the jury could consider that testimony.
The defense presented testimony from two of defendant's long-time friends, concerning his good reputation in the community. The defense also presented testimony from Dr. John Scalera, a urologist, who examined defendant on May 12, 2000 to determine "if he had any genital warts or genital diseases." He found no genital warts. On cross-examination, Dr. Scalera agreed that the fact that defendant did not have genital warts on the day he examined him did not mean that "defendant never had any warts." He also agreed that a physical examination would not reveal whether defendant "ever had any genital warts."
The defense next presented testimony from Jacqueline Kiernan, an employee of the Division of Youth and Family Services (Division). Kiernan conducted an investigation in 2000, after A.A. reported S.E.'s allegations to the Division. Kiernan met with S.E., who told her that her step-father had sexually abused her, starting three years previously and ending two years before the interview. However, S.E. also told Kiernan that, the weekend before the interview, defendant called her into his bedroom; on entering, she saw defendant with his penis exposed, watching pornography on the internet. S.E. recounted that she "told [defendant] to put it back in his pants and left the room."
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
S.E. also told Kiernan that defendant stopped molesting her after she "mouthed off at him," and that she and her sister were "just stick[ing] together" in opposing defendant's efforts to molest them. S.E. informed Kiernan that after she spoke to A.A., she also told her mother that defendant molested her, but did not tell her mother what had happened to W.E. After speaking with S.E., Kiernan interviewed W.E. and arranged for Dr. Lowen to examine both girls.
In an effort to show that S.E.'s and W.E.'s trial testimony was different or more extensive than their original statements to the police, the defense read to the jury the testimony of Detective Oglesby, who interviewed the girls in 2000. He confirmed that during their interviews, neither S.E. nor W.E. mentioned that defendant forced them to have oral sex with him, although they revealed many other sexual activities that he forced upon them.
The defense also called A.A. as a witness. While he was a social work student in college, he participated as a counselor in a recreational program at S.E.'s school. When S.E. applied to participate in the program, she indicated, in response to a question on the application form, that she had been physically and sexually abused. A.A. testified that he followed up on that application by interviewing her on October 14, 1999. At that time, S.E. told him that her grandmother's boyfriend had sexually abused her. At the next meeting, she told him that her brother had argued with her about "some rumors" going around about her. She mentioned that her mother "was trying to move out because her stepdad had a bad temper," but later indicated that the situation "did get better."
A.A. testified that after five meetings, S.E. finally told him on, November 16, 1999, that her step-father had sexually abused her when she was twelve years old. She told A.A. that the abuse occurred "after [defendant] gained her trust about the previous incident with sexual abuse by her grandmother's paramour." A.A. discussed these disclosures with a supervisor and urged S.E. to tell her mother about the situation. On cross-examination, A.A. testified that S.E. disclosed to him that her step-father had sexual intercourse with her, as well as oral sex. She told him the molestation had been going on since she was twelve years old. She also revealed that the step-father had molested her sister. A.A. confirmed that he called the Division to report the allegations. When the Division contacted S.E. to interview her, she told A.A. that she was embarrassed and afraid that her fellow students would find out what happened to her.
In his trial testimony, defendant denied that he ever molested or inappropriately touched S.E. or W.E. He admitted taking the video of S.E., but insisted that it was only one of many videos he took of the children in order to keep M.D. aware of what was happening with the children while she was at work. He also authenticated a video that he made of S.E., consisting of his interviewing her about her prior experience being molested at her grandmother's house. During that video, defendant told S.E. that if anything bad happened to her she should tell her mother about it.
Later in defendant's testimony, defense counsel sought to play a video that defendant took of one of his own daughters getting ready to attend a prom. The judge allowed testimony about the video but sustained the State's objection to showing the jury the hour-long video, finding that it was irrelevant.
--------
Defendant confirmed that when the children first moved in with him and M.D., W.E. sometimes slept in their bed with them, and would sometimes remain in bed with him after M.D. left for work. However, he denied having any sexual activity of any kind with W.E. He also denied telling the girls not to tell anyone if something bad happened to them. He insisted, to the contrary, that he "encouraged" them to tell someone if bad things happened to them. Defendant denied that he ever had venereal warts and stated that he had no knowledge of M.D. ever having them.
According to defendant, even after M.D. was aware of the allegations that he molested the girls, she continued to have sexual relations with him. He later told M.D. that he thought it was "disgusting" that she heard about those allegations "and she continued having a sexual relationship with me." Defendant testified that he was the main disciplinarian in the household, and he was quite strict. The girls resented this and sometimes said they hated him.
Defendant denied ever exposing himself to the girls or taking nude pictures of them. He admitted taking nude pictures of a former paramour, but insisted that he kept those pictures locked in a box and never showed them to S.E. He denied ever asking M.D. to retrieve the box. He admitted briefly touching S.E.'s breast once, at her request, because she told him there was a lump in her breast. The lump turned out to be a cyst, which she had removed.
According to defendant, at some point, his relationship with M.D. started to deteriorate. He told M.D. that he was thinking of breaking up with her, and took steps to put the house on the market. This brief testimony was designed to support the defense theory that the girls made up the sexual abuse allegations, with M.D.'s encouragement, in order to retain possession of the house and force defendant to move out.
On cross-examination, defendant was questioned extensively about the video he made of his "interview" with S.E., around the time that the girls were moving into his house. In the video, he elicited from the child her disclosure that while at her grandmother's house, a man tried to put his tongue in her mouth and was improperly touching her. In response to the prosecutor's questions, he admitted that instead of immediately stopping the videotaping and calling M.D., he went on with the interview; however, he stated that he later told M.D. and suggested that she watch the video.
He also admitted that after eliciting S.E.'s disclosure about the prior molestation, he told her in great detail about all the sacrifices he and M.D. were making to buy the house and what a financial burden it was, in order to make sure that S.E. appreciated what he and M.D. had done for her. At one point in the video, he joked with S.E. that she and her sister might have to go back and live with their grandmother, although he knew she hated living there. Defendant also admitted taking a video of S.E. in which she was undressing, but he asserted that he did not realize that she was going to take her dress off during the video. He admitted that the pictures in the locked box included him as well as his former paramour and were "pornographic." But he denied ever showing them to S.E.
II
On this appeal, defendant first argues that trying him four times violated fundamental fairness principles. This point presents the same arguments we considered and rejected on the merits in our earlier opinion deciding defendant's interlocutory appeal. R.J.C. II, supra. That decision is the law of the case, and we decline to revisit it on this appeal. See Acuna v. Turkish, 384 N.J. Super. 395, 407 (App. Div. 2006), reversed on other grounds, 192 N.J. 399 (2007), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008).
Defendant also raises a number of arguments concerning the way the trial was conducted. He argues for the first time on appeal that the judge erred in failing to give, sua sponte, a limiting instruction after each fresh complaint witness testified. We cannot agree. None of the cases defendant cites stands for the proposition that a contemporaneous limiting instruction is required whenever fresh complaint testimony is admitted. Unlike State v. Scherzer, 301 N.J. Super. 363, 419 (App Div.), certif. denied, 151 N.J. 466 (1997), on which defendant relies, in this case the fresh complaint testimony was brief and not overly detailed. The judge gave an extensive fresh complaint instruction in the jury charge, and on this record, that was sufficient.
Defendant also contends that Dr. Lowen gave improper testimony when she stated, on cross-examination, that she had an opinion as to whether the girls were sexually abused. Dr. Lowen's direct testimony was inconclusive on the issue of sexual abuse. The doctor testified that she observed evidence of trauma to the hymen of each victim, but she could not tell if it was the result of physical assault by defendant because the girls had had other sexual partners. The later testimony, to which defendant now objects, resulted from defense counsel's insistence on repeatedly pressing the doctor as to whether she could "make an opinion whether or not these girls were sexually abused or not." In response the doctor replied, "I do have an opinion, actually." However, the judge did not permit her to state what that opinion was.
The judge gave the jury an immediate and very thorough curative instruction. The judge specifically stated that the jury could not consider the doctor's opinion on whether sexual abuse occurred. Instead, the jury should only consider the doctor's physical observations and any inferences they chose to draw from those observations. He also instructed that even if the doctor had formed an opinion based on what the girls told her, it was the jury's role to decide whether to believe the girls' testimony. It was not the role of an expert witness to tell the jury whether to believe a witness's testimony. We find no error, much less plain error, in the judge's instruction. Moreover, on this record, there is no possibility that Dr. Lowen's brief comment could have led the jury to convict defendant when they might otherwise have acquitted him. See R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Defendant also argues that the trial was somehow tainted because Theodore Housel, Esq., his defense counsel at one of the prior trials, had been appointed the Atlantic County Prosecutor by the time of the fourth trial and because, at one time, Housel worked as a Cape May County assistant prosecutor. We cannot agree. The fourth trial was prosecuted by Meghan Hoerner, a Special Deputy Attorney General assigned to the Cape May County Prosecutor's Office. Hoerner also placed on the record the fact that she had never worked with Housel as an assistant prosecutor.
Defendant's reliance on State v. Murray, 345 N.J. Super. 158 (App. Div. 2001), certif. denied, 172 N.J. 179 (2002), is misplaced. There is no evidence in this record that Housel had any involvement whatsoever in the prosecution of this case. Nor is there evidence of any other conflict of interest on the part of the prosecution. Defendant's argument on this issue is completely without merit and warrants no further discussion. See R. 2:11-3(e)(2).
Defendant's additional challenges to the judge's evidentiary rulings are likewise insubstantial. We review those rulings for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We find no abuse of the trial judge's discretion in excluding evidence concerning whether M.D. became romantically involved with another man after defendant moved out of the house. Nor did the judge abuse his discretion in precluding the defense from playing for the jury an hour-long videotape of one of defendant's biological daughters getting ready for her prom.
Defendant's complaint of cumulative error is without merit. The State presented a strong case, supported not only by the victims' testimony, but by the pornographic pictures defendant showed S.E., the video defendant took of her undressing, and the bizarre video in which defendant first induced S.E. to disclose her prior molestation and then imparted an unsubtle lecture about the power he held over her and the debt of gratitude she owed him. We find no miscarriage of justice on this record. See R. 2:10-2.
Defendant's challenge to his sentence requires little discussion. R. 2:11-3(e)(2). Given the horrific nature of his repeated sexual assaults on two young girls, the seventeen-year NERA sentences were entirely justified, as was the imposition of consecutive sentences. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d 305 (1986). Even considering that defendant is confined to a wheelchair, we find no basis in this record to second-guess the judge's sentencing decision. State v. Bieniek, 200 N.J. 601, 607-08 (2010). We affirm the sentence, substantially for the reasons cogently stated by the trial judge at the sentencing hearing on February 5, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION