Opinion
DOCKET NO. A-3286-11T1
09-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. A.R., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-12-0992. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant A.R. appeals his sentence and convictions for second degree sexual assault, second degree endangering the welfare of a child, and offensive touching. After carefully reviewing the record and applicable legal principles, we affirm.
I
A.R. was indicted for sexually abusing his two daughters, Ann, born in 1986, and Alice, born in 1990. Specifically, he was charged with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c) (count two); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts three and six); second degree sexual assault, N.J.S.A. 2C:14-2b (counts four and five); and third degree witness tampering, N.J.S.A. 2C:28-5a(1) (count seven). Counts one through four charged offenses concerning Ann and counts five and six charged offenses concerning Alice. The State dismissed count seven before trial.
The names of the victims and their family members are fictitious.
On September 23, 2011, the jury convicted defendant of counts three through six. Although the jury acquitted defendant of first degree aggravated sexual assault (counts one and two), it convicted defendant of the lesser included offense of offensive touching, a petty disorderly persons offense. On December 20, 2011, the court merged the appropriate offenses and sentenced defendant to an aggregate term of twenty years, subject to an eighty-five percent parole ineligibility period and three years of parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also sentenced to parole supervision for life.
The relevant evidence adduced at trial concerning Ann's allegations was as follows. Ann, who was twenty-five years old when she testified, recalls that, between the age of eight and ten, she was lying naked on a couch in the living room when defendant got on the couch with his pants down and rubbed his penis against her vagina. She also stated that at some point during the incident she became aware that her brother, Tom, was looking through the window.
After this incident "everywhere and anywhere was the perfect chance for sex [with defendant]." The sexual acts consisted of "the rubbing . . . standing bottomless, you know; bending over; spreading my legs; him either touching me, you know, or not touching me;" and sucking her breasts. At times, defendant did not touch Ann but masturbated while looking at her. At some point in time, defendant began to have anal sex with Ann as well. Defendant never had vaginal intercourse with her because her mother regularly checked Ann to make sure she was still a virgin.
While Ann was in high school, defendant ran a janitorial business that cleaned movie theaters after hours. Ann and Tom helped defendant clean the theaters, and on multiple occasions defendant and Ann took breaks from their chores to engage in sexual relations. Tom either continued cleaning or acted as the lookout. In addition to having sex in their home and in the theaters, Ann and defendant also had sex in cars. When they had sex at home, it was Tom's job to keep others away including Alice, Ann's younger sister, who reported anything that was amiss to their mother.
When she was ten years old Ann told her mother about the abuse. Her mother "flipped out" and dragged defendant out of bed with a knife and forced him to take her and Ann to the hospital. On the way to the hospital, her mother jumped out of the car and walked around an empty parking lot. Defendant told Ann to recant and she complied.
Thereafter, Ann's mother asked her daily if defendant was abusing her, but Ann always denied the abuse was still occurring. Ann also told representatives from the Division of Youth and Family Services (DYFS) that her father was not abusing her, although did report that her mother physically beat her and routinely examined her to determine if she were still a virgin.
A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency. --------
When Ann was twenty-three and Alice nineteen years of age, Alice told Ann that defendant had sexually abused her. As a result of this disclosure Ann resolved to reveal her own abuse by defendant. Both sisters reported defendant's sexual abuse to the police in June 2009.
Alice testified that defendant and Ann had a relationship that was more like a married couple. Alice observed them hold hands, kiss "like a making-out kiss," and disappear into the bedroom. When they went into a bedroom Alice surmised they were on a bed because, when she looked under the door, she could not see their feet on the floor.
Alice stated, that as a young child, her father ignored her but after she turned twelve he began to sexually abuse her. The first time her father inappropriately touched her occurred when she was passing her father on the stairs. Defendant "took his hand and rubbed it up my skirt." Thereafter, defendant asked her to wear skirts or dresses and "used to feel up on me."
At another time defendant called Alice into a room and put her on top of him. He pulled his penis out of his pants, pushed her underwear to the side, and "started rubbing on me." Defendant pushed her away because Alice exuded discomfort over his conduct. Alice did not tell anyone about her father's conduct until she was approximately eighteen years old. At that time, she confided in Ann about the abuse and together they went to the police.
Tom testified that he saw his father having sex with Ann and was the "lookout" on countless occasions. The first time he saw them engaging in sex was when he looked through a window and saw his father on top of Ann, who was naked. His father saw Tom at the window and later asked him if he had "see[n] anything" and that he was "going to get beat if [he] did see something." On occasion Tom protested being a lookout, but his father responded by beating him.
Defendant's position at trial was that Ann lacked credibility. He emphasized her delay in reporting the abuse as well as her failure to report the sexual abuse to DYFS when she had disclosed her mother's physical abuse, including her mother's inspection of her vagina. Defendant also noted Ann's failure to disclose the alleged incestuous relationship to her husband. Finally, defendant argued Ann's credibility was also undermined by her post-traumatic stress disorder diagnosis, which was related to an incident that occurred when she was in the military.
Defendant adopted a similar line of defense with respect to the allegations made by his younger daughter, Alice. He claimed her delay in revealing the abuse and failing to alert DYFS of his alleged sexual misconduct were indicative of her lack of credibility and good faith. In addition, defendant claimed Alice resented him because he favored Ann and thus had a vendetta against him.
Before trial, defendant filed a motion under Rule 3:15-2(b) seeking to sever the offenses based on claims made by Ann from those predicated on Alice's allegations. Defendant argued he would be prejudiced if Ann's and Alice's claims were prosecuted in the same trial, and moved to sever the counts containing Ann's allegations from those setting forth Alice's allegations. The trial court denied the motion.
Acknowledging the test for assessing prejudice in a motion to sever is whether the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in a trial of the remaining issues, see State v. Sterling, 215 N.J. 65, 73 (2013), the court considered the four factors established in State v. Cofield, 127 N.J. 328, 338 (1992). These factors are:
(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
The trial court found as follows.
In determining whether or not such 404(b) evidence exists, the evidence of the other crimes must be admissible as relevant to a material issue. With regard to that particular factor, other crimes evidence can be relevant to material issues in a case [to show] motive, opportunity, intent, preparation of plan, knowledge, identity, absence of mistake or accident, or some other fact.
This case involves that [the] sexual assault of two adolescent females, who were under the care and control of defendant. There are many similarities between these two offenses. The court would note that the defendant in this case is the father of the victims. The court would note that the allegations of these two offenses occurred during the same time frame.
The court would note that . . . we have two minor victims in this case. The court would note that in this case the victims are under the care and supervision of the defendant. The court would note that at the time of these offenses both victims resided under the same roof as the defendant. And, the court would note that there [are] some similarities with regards to the sexual allegations themselves, that they started off with a sexual contact or sexual touching, as referred to by the State.
The court would also note that the defendant allegedly threatened both girls not to disclose what was happening to them.
Based upon that, the assaults that took place against these girls were similar in nature, and they do fall under various factors, under [the] 404(b) factors I just referenced, motive, intent, and primarily, a common scheme.
The second [Cofield] factor the court should consider is [they] must be similar [in] kind and reasonably close to the time to the offense charged. I just referenced some of those factors. I'll incorporate those references. They were, as I stated, the — similar in time. These happened sort of overlapping the same time frame. The similar in kind, I just referenced that as well, and I incorporate those references that it does satisfy Factor 2.
The third [Cofield factor] is the evidence that [the] crimes must be clear and convincing. That's always difficult to judge at this early stage of the proceedings. The prosecution has relied upon the fact that the two victims, alleged victims, are going to come forward, and [are] going to indicate that these incidents happened.
In addition to that, there's going to be corroborative evidence, that specifically being, that . . . the brother observed the offense taking place on [Ann]. So, the court is satisfied, based upon the State's representation that there is, and can be, potentially clear and convincing evidence.
And, the fourth prong is that the probative value of the evidence must not be outweighed by it's apparent prejudice. Certainly the evidence is probative, and the court has to balance that probative value with the likelihood of prejudice. Any evidence that is contrary to a defense is prejudicial, and that has to be balanced as to whether or not it becomes unduly prejudicial, and the court
does not find that, especially, in light of the fact the court will be giving a sufficient or appropriate jury charge, to explain to the jury how they're supposed to — and how they're to consider the 404(b)-type evidence in this case.
During the charge conference the court raised the issue of the N.J.R.E. "404(b) charge" and advised counsel that it wanted to make clear to the jury that it had to consider each victim separately and could not use a finding of guilt with respect to one victim when considering defendant's actions as to the other. In response to the trial judge's direct inquiry, defense counsel stated he did not want any changes made to the N.J.R.E. 404(b) charge. The trial judge gave the jury the following instructions with respect to the issues implicated under N.J.R.E. 404(b):
The indictment in this case alleges two separate victims in various counts of the Indictment. I specifically instruct you that these are two separate victims and they must be considered separately by the jurors.
You should not consider any of the proofs that were presented during this trial to prove defendant guilty of counts against one of the victims as proof against the other victims as they must be considered separately.
Essentially, what I want to make clear is that you may not conclude that if the offenses happened against one of the victims, it probably happened to the other.
The State must separately prove beyond a reasonable doubt the offenses alleged against each independent victim.
After the court delivered the charge, defense counsel again represented the charge was acceptable.
II
Defendant raises the following arguments in support of his appeal:
POINT I - THE TRIAL COURT ERRED IN DENYING A.R.'S SEVERANCE MOTION BECAUSE THERE WAS NO VALID REASON FOR JOINING THE COUNTS PERTAINING TO ANN WITH THE COUNTS PERTAINING TO ALICE AND JOINDER SERVED ONLY TO IMPERMISSIBLY SUGGEST THAT DEFENDANT HAD A PROPENSITY TO COMMIT SEXUAL ASSAULT AND TO IMPROPERLY BOLSTER THE TESTIMONY OF EACH VICTIM. THE TRIAL COURT ALSO ERRED BY FAILING TO ISSUE AN INSTRUCTION LIMITING THE JURY FROM USING THE JOINED OFFENSES FOR THESE IMPERMISSIBLE PURPOSES.
POINT II - REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO ELICIT INADMISSIBLE HEARSAY IN VIOLATION OF A.R.'S RIGHTS TO CONFRONTATION AND A FAIR TRIAL.
A. The Trial Court Erred In Permitting The State To Bolster Ann's Testimony With An Out-Of-Court Statement She Allegedly Made To Her Mother When She Was Ten Years Old.
B. Trial Court Committed Plain Error By Allowing The Prosecutor To Introduce Damaging Inferential Hearsay In Violation Of A.R.'S Rights To Confrontation And A Fair Trial.
C. The Trial Court Erred In Allowing The State To Bolster The Credibility Of Tom's Testimony By Eliciting From Tom That He Reported The Abuse To A Bridgeton
Detective In 2004 And 2005, And To A Doctor.
D. The Trial Court Erred In Permitting Ann's Testimony That It Was "Common Knowledge" That "Everybody In The House" "Knew" That "Something Was Going On" Between Her and A.R., and That It Was Alice's "Job" To "Report" Suspicious Activity To Their Mother.
POINT III - THE TRIAL COURT'S FAILURE TO READ THE MODEL CHARGE ON PRIOR CONTRADICTORY STATEMENTS AND DELIVERY OF A DEFICIENT CHARGE ON LACK OF FRESH COMPLAINT REQUIRES REVERSAL.
POINT IV - THE TRIAL WAS SO INFESTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT WARRANT REVERSAL, THE AGGREGATE OF THE ERRORS REQUIRES A NEW TRIAL.
POINT V - THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE IMPOSITION OF CONSECUTIVE MAXIMUM SENTENCES WAS NOT SUPPORTED BY THE RECORD AND THE COURT FAILED TO CONSIDER MITIGATING EVIDENCE SUPPORTED IN RECORD WHEN RECONSIDERING A.R.'S SENTENCE.
We are not persuaded by these arguments and affirm.
With respect to argument Point I, defendant asserts the court erred when it denied his motion to sever. He maintains the joinder of both victims' allegations was prejudicial because, aware he was charged with sexually abusing both daughters, there was a risk the jury would assume he had a propensity for molesting young girls. He also contends that the N.J.R.E. 404(b) charge was deficient because it did not specify how the jury was to use other-crimes evidence.
A trial court's decision to admit other-crimes evidence is afforded "great deference" and will be reversed only in light of a "clear error of judgment." State v. Barden, 195 N.J. 375, 390-91 (2008). The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under Cofield due to its "intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (citing State v. Ramseur, 106 N.J. 123, 266, (1987)). Therefore, a trial court's decision concerning the admission of other-crimes evidence will not be disturbed absent a finding of abuse of discretion. Ibid.
Rule 3:7-6 permits joinder when two or more offenses are "of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." However, a court may sever joined charges "[i]f for any reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses." R. 3:15-2(b).
Here, because the offenses charged in the indictment were of a "similar character" and thus satisfied the requisites of the Rule 3:7-6, they were properly joined. R. 3:7-6. The question is whether the trial court should have granted defendant's motion for a severance because the joinder was prejudicial. As previously stated, when determining whether any counts must be severed, a court must examine each charge sought to be severed and determine if evidence of each charge would be admissible under N.J.R.E. 404(b) in a trial of the remaining charges; if so, such charge shall not be severed. See Sterling, supra, 215 N.J. at 73.
N.J.R.E. 404(b) governs the admissibility of other crimes evidence. That rule states:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N. J.R.E. 404(b).]
In Cofield, supra, 127 N.J. at 338, the Supreme Court established the four-prong test, previously cited, to determine the admissibility of other-crimes evidence under N.J.R.E. 404(b). If a court permits a jury to hear other-crimes evidence, "the court must instruct the jury on the limited use of the evidence." Id. at 340-41. "[T]he court's instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. G.V., 162 N.J. 252, 258 (2000) (internal quotations omitted).
The first prong of the Cofield test requires that the other-crime evidence be admissible as relevant to a material issue. At the time of trial defendant asserted the "vendetta defense" with respect to Alice's allegations. He claimed Alice's claims stemmed from her resentment for being ignored by him as a young child. In State v. G.V., 162 N.J. 146 (2000), the Court held that other crimes evidence is material if a defendant asserts a witness is biased on account of a vendetta. Id. at 146. Here, the other-crimes evidence, specifically, Ann's allegations of abuse, could be used to counter a claim that Alice was biased against her father. See State v. P.S., 202 N.J. 232, 257 (2010).
Alice's allegations were material in the prosecution of the charges alleging Ann had been sexually abused. Specifically, defendant claimed Ann's delay in disclosing the abuse suggested her claims were fabricated. However, it was Alice's revelations of defendant's conduct that motivated Ann to take action and contact the police, explaining the long delay in reporting the abuse to the police.
The second Cofield factor is that the other-crime evidence must be similar in kind and reasonably close in time to the offenses being prosecuted. Here, although Ann endured far more abuse and for a longer period of time, each girl's experience was unquestionably similar. As for the temporal element, defendant was abusing Alice during the same period he was assaulting Ann.
The third Cofield factor is that the evidence of the other crime must be clear and convincing. The trial court indicated it decided this factor based upon the State's proffer of the victims' testimony. We are not as constricted as the trial court. Because "an appeal is taken from a trial court's ruling rather than the reasons for its ruling, we may rely on grounds other than those upon which the trial court relied." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). From our review of the evidence at trial, we are satisfied this prong was fulfilled.
The fourth factor requires a consideration of whether the probative value of the other crime evidence is outweighed by its apparent prejudice. The State was confronted with the potential defenses of vendetta and fabrication; therefore, the probative value of the other-crimes evidence was high. We are satisfied that the probative value substantially outweighed the risk of prejudice to defendant. Indeed, this conclusion is borne out by the jury's verdict, which found defendant not guilty of committing an act of first degree aggravated sexual assault upon Ann, suggesting the jury was not distracted by the other-crime evidence.
Defendant also complains the court's N.J.R.E. 404(b) limiting instruction failed to apprise the jury of the permitted and prohibited uses of other-crimes evidence. See State v. Oliver, 133 N.J. 141, 158-59 (1993). First, we note defendant knew the content of the jury instructions before the jury was charged. Nevertheless, he specifically represented to the court that the charge was acceptable, notwithstanding the very language he claims was error to omit was clearly absent from the charge. Because defendant did not object to the trial court's instruction, the issue arises as one of plain error. R. 2:10-2.
Plain error is reversible only if it is "clearly capable of producing an unjust result." R. 1:7-2; R. 2:10-2. Accordingly, the test to apply is whether the possibility of injustice is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We are satisfied there was no plain error.
First, the jury received clear instructions to consider each charge separately and was specifically instructed that it was prohibited from using the evidence pertaining to one victim to determine defendant's guilt as to the other. Given the verdict, the jury adhered to the court's instructions and separately assessed each charge.
Second, the record suggests defendant was not prejudiced by the court's failure to specifically identify how it was to use the other-crimes evidence. The appropriate instruction could have suggested to the jury that Ann's claims dispelled the notion Alice was retaliating against her father, and that Alice's disclosure to Ann of defendant's abuse readily explained her failure to report defendant to the police earlier.
Finally, there was ample evidence of defendant's guilt as to both victims. Viewing the record as a whole, we do not discern that the failure to advise the jury on how to use other-crimes evidence would have changed the outcome. Accordingly, we cannot fairly say that the error committed was capable of producing an unjust result. R. 2:10-2.
After carefully reviewing the record and the briefs, we are satisfied defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION