Opinion
DOCKET NO. A-4015-12T2
01-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.F., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-10-0709. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A Somerset County grand jury charged defendant E.F. with first-degree aggravated sexual assault, N.J.S.A. 2C:14:2a(2) (count one), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). Defendant was tried before a jury, which convicted defendant of both counts of the indictment.
The trial judge sentenced defendant to sixteen years in prison on count one, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent seven-year term on count two, which was also subject to NERA. The judge ordered defendant to pay $8120 in restitution to the Victims of Crime Compensation Fund, and advised him that he was subject to Megan's Law registration and reporting requirements, and parole supervision for life. The judge also assessed appropriate fines and penalties. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE ADMISSION OF THE POLICE OFFICER'S STATEMENT THAT THE VICTIM WAS CREDIBLE DENIED DEFENDANT A FAIR TRIAL. U.S. Const. Amend. XIV; N.J. CONST. Art. I, ¶ 1.
POINT II
THE ADMISSION OF OTHER CRIMES EVIDENCE WITHOUT ANY LIMITING INSTRUCTION DENIED DEFENDANT A FAIR TRIAL. U.S. Const. Amend. XIV; N.J. CONST. Art. I, ¶ 1.
POINT III
THE INSTRUCTION THAT THE JURY MAY NOT AUTOMATICALLY CONCLUDE THAT THE VICTIM'S
TESTIMONY WAS UNTRUTHFUL BASED ONLY ON HER DELAYED DISCLOSURE WAS PLAIN ERROR. U.S. Const. Amend. XIV; N.J. CONST. Art. I, ¶ 1. (Not Raised Below).After reviewing the record in light of the contentions advanced on appeal, we affirm.
POINT IV
COUNTS ONE AND TWO SHOULD HAVE MERGED; THE OVERALL SENTENCE WAS EXCESSIVE. U.S. Const. Amend. VII, XIV; N.J. CONST. Art. I, ¶ 1.
POINT V
DEFENDANT'S WAIVER OF HIS NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS NOT VALID BECAUSE THE POLICE FAILED TO INFORM HIM THAT HE WAS THE "TARGET" OF THEIR INVESTIGATION.
I.
The State developed the following proofs at trial. The victim, J.G., was born in Guatemala in June 1994. In 1999, J.G. and her mother, F.G., moved to New Jersey. When J.G. was about nine years old, F.G. met defendant and they began a romantic relationship. F.G. and defendant got married in June 2005, and the couple and J.G. resided together in defendant's apartment.
In 2008, F.G. worked multiple shifts a day, and most weekends, as a nurse's aide. Defendant cared for J.G. after school, prepared her meals, and made sure she did her homework.
One day in November 2008, J.G. was playing video games after school in the family living room. F.G. was working and defendant was home. When J.G. asked defendant for a soda, he gave the child an unknown substance to drink. After consuming the beverage, J.G. testified that the next thing she remembered was that she was "lying on [her] back" on her bedroom floor. She felt "really confused" and "really nauseous." J.G. then realized that defendant was on top of her, had his hand on her chest, his pants pushed down, and he was thrusting his penis inside her vagina. J.G. felt "very heavy" and was unable to move or speak.
After the assault ended, J.G. vomited on the floor. She crawled toward the bathroom, but when she got to her bedroom door she threw up again. J.G. vomited once more when she made it to the bathroom. When she was finally able to walk, J.G. testified she took a shower and returned to her bedroom where she found her vomit had been cleaned up. She did not see defendant in the bathroom or in her bedroom. J.G. got into her bed and waited for her mother to return home.
J.G. stated she felt like she "needed to tell her [mother] what happened." However, when F.G. came home from work and went into J.G.'s bedroom, defendant was with her and he was "glaring at" J.G. Because she "got really scared," the child was not able to tell her mother about the incident. Instead, J.G. told F.G. she "had a really bad dream that a clown raped" her.
After this incident, defendant told J.G. that she had "to do what he said, or else he would send [her] to go live in Guatemala." Defendant also told J.G. he would make her "miserable" if she refused to succumb to his sexual demands. Defendant told the child it was her "duty" to have sexual intercourse with him because he was no longer having sex with her mother. Although J.G. wanted to tell her mother what was happening, she was afraid to do so.
After the incident in November 2008, defendant forced J.G. to engage in vaginal intercourse with him "a few times a week." Defendant also made the child watch pornography with him, and then ordered her "to do what they were doing on the video" to him. In addition, defendant had J.G. perform oral sex on him and he would penetrate J.G.'s vagina with his fingers. When he asked, J.G. gave defendant naked pictures of herself because she hoped this would stop him from making her engage in sexual acts with him. When J.G. told defendant she did not want to do these things, he made her sit in her room alone and would tell her she was "the most disgusting person," that "nobody cared" about her, and "this is the way that life is."
In June 2009, J.G. and F.G. went to Guatemala so J.G. could celebrate her fifteenth birthday with her mother's family. When they returned, J.G. refused to have sex with defendant. Soon thereafter, defendant told J.G. and her mother to leave the apartment. They moved in with F.G.'s sister and her husband, B.C.
A few weeks later, in August 2009, J.G. and her mother went to a shopping mall with B.C. and his family. During the outing, J.G. told B.C. that defendant had been sexually assaulting her. B.C. encouraged J.G. to tell her mother, but the child demurred. B.C. then told F.G. that defendant had sexually assaulted J.G. F.G. spoke with her daughter about the incident and subsequently contacted the police.
On September 11, 2009, Detective Rodas and Detective Hofacker went to defendant's place of employment and defendant agreed to speak to them. Detective Rodas advised defendant of his Miranda rights. Defendant acknowledged that he understood and waived these rights both verbally and in writing. Defendant gave detectives a brief statement in which he said that J.G. was his stepdaughter and that he had often cared for her.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Because defendant's work site was noisy, the detectives asked defendant if he would follow them to headquarters to complete his statement. Defendant agreed. Before resuming the interview, the detectives again advised defendant of his Miranda rights. The State played defendant's recorded statement to the jury at trial.
In his recorded statement, defendant initially denied ever sexually assaulting J.G. or making her watch pornography. However, defendant later asserted that J.G. "flashed" her breasts at him, showed him her vagina and, at her instigation, allowed him to touch her breasts and vagina. Defendant also told the detective he performed oral sex on J.G. two to three times, and she reciprocated by performing oral sex on him at least once. He explained he had intercourse at least three times with J.G. and digitally penetrated her on three occasions. Defendant also stated that J.G. had masturbated in front of him and he stated she watched pornography. Defendant said that J.G. sent him naked pictures of herself from her cell phone. Defendant knew his actions were "a hundred percent . . . wrong." However, he told the detectives that his sexual relationship with the child was "consensual" and that the victim "force[d] herself on" him.
Defendant testified at trial and denied ever sexually assaulting J.G. He stated that F.G. and J.G. simply moved out one day without explanation. Defendant testified the detectives subsequently came to his place of employment to talk to him and that he then went to police headquarters to continue the interrogation. Defendant admitted telling the detectives he sexually assaulted J.G. on numerous occasions, but claimed he only made those admissions because "[t]hat's what they wanted to hear."
II.
In Point I, defendant argues the trial judge incorrectly overruled his objection to the admission of a part of his taped statement in which Detective Hofacker commented on the victim's credibility. During the interrogation, the detective told defendant, "I'm not here to lie to you, you know we, we have a statement from [the victim] and . . . I believe it's pretty credible." Defendant contends this statement was improper "opinion testimony" and should have been stricken by the judge. We disagree.
A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div.), certif. denied, 174 N.J. 546 (2002). Contrary to defendant's contention, the detective's statement was not "testimony"; it was a statement made during the course of a recorded interrogation that was played for the jury. Defendant had the opportunity to fully cross-examine Detective Hofacker concerning the statement when he testified, and the detective candidly admitted that police are "allowed to use trickery" and "allowed to lie" to a suspect during an interview. Detective Hofacker also admitted he had not even met with J.G. at the time he spoke to defendant, and did not know the nature of any of her allegations. Thus, the jury was fully aware that Detective Hofacker was not vouching for, or rendering an opinion on, J.G.'s credibility. Therefore, defendant's argument on this point lacks merit.
J.G. had spoken to Detective Rodas prior to the interview, but Rodas did not tell Detective Hofacker what the child told him.
III.
In Point II, defendant argues the judge erred in denying his pre-trial objection to the admission of the victim's testimony that defendant threatened to return her and her mother to Guatemala if she refused his sexual advances. Defendant contends that this testimony concerned the uncharged crime of hindering apprehension, N.J.S.A. 2C:29-3b, and that this "other crime evidence" should have been excluded under N.J.R.E. 404(b) based upon our Supreme Court's decision in State v. Rose, 206 N.J. 141 (2011). Again, we disagree.
Contrary to defendant's contention, the admission of this testimony was clearly permitted under the Court's decision in Rose. In that case, the Court invalidated the use of the res gestae doctrine as an independent basis for the admission of other, uncharged bad acts when offered as background information helpful to the jury's analysis of the crimes charged in the indictment. Id. at 180-82. The Court reasoned that allowing evidence of uncharged prior bad acts under a res gestae theory contradicts the rigorous strictures of N.J.R.E. 404(b). Id. at 182. In reaching that conclusion, the Court observed that the century-old res gestae doctrine had outlived its usefulness in light of the adoption of the formal rules of evidence. Id. at 176. The Court held that "[w]henever the admissibility of uncharged bad act evidence is implicated," the admissibility of such evidence must be determined under a N.J.R.E. 404(b) analysis rather than a res gestae analysis. Id. at 179.
However, the Court created a narrow exception to this requirement. Id. at 177-78. The Court concluded that evidence that is "intrinsic" to the crime charged need be evaluated only under a standard of relevance analysis under N.J.R.E. 402, subject to the N.J.R.E. 403 balancing test. Ibid. In noting that "[t]he difficulty lies in determining what evidence is intrinsic," id. at 178, the Court stated:
[W]e . . . review the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under Rule 404(b).
[Rose, supra, 206 N.J. at 180 (quoting U.S. v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).]
Applying these principles here, defendant's threats to send the victim and her mother to Guatemala clearly facilitated the commission of the sexual assaults charged in the indictment. Ibid. Defendant's threats were plainly intended to coerce the victim into continuing to submit to his sexual advances and to discourage her from telling her mother or the authorities about the assaults. Therefore, the judge was not required to conduct a N.J.R.E. 404(b) analysis or provide the jury with a limiting instruction prior to permitting the child to testify about the threats.
IV.
Defendant next argues in Point III that, as a matter of plain error, the trial judge's jury instruction improperly intruded on the jury's function to determine credibility of witnesses because it included language that the jury could not "automatically conclude" J.G.'s testimony was untruthful based on her delayed disclosure of the sexual assaults. This argument lacks merit.
The fresh complaint doctrine permits proof that a victim of sexual assault complained of the assault within a reasonable time to someone the victim would normally turn to for sympathy, protection and advice. The evidence is permitted to forestall the assumption that no assault occurred because no complaint was made.In instructing the jury on fresh complaint testimony, the trial judge must indicate that the victim's delay in reporting his or her abuse should be considered in assessing the victim's credibility, but the silence or delay, in and of itself, is not inconsistent with a claim of abuse. State v. P.H., 178 N.J. 378, 396-97 (2004). The court must also clarify that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault, but merely dispels the inference that the victim was not abused. State v. Bethune, 121 N.J. 137, 148 (1990) .
[State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572 (2003) (internal citations omitted).]
Although they pertain to similar issues, child sexual abuse accommodation syndrome (CSAAS) and fresh complaint testimony are not the same. CSAAS evidence is admitted in sexual abuse cases through expert testimony to "'explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred.'" State v. W.B., 205 N.J. 588, 609 (2011) (quoting State v. J.Q., 130 N.J. 554, 579 (1993)).
In W.B., the trial court issued a jury instruction, based on the model CSAAS charge, which included language that the jury may not automatically conclude a witness's testimony is untruthful based on his or her delayed disclosure. Id. at 621-22. The defendant appealed his conviction for sexual abuse related charges, arguing the inclusion of the word "automatically" in the CSAAS jury charge unduly limited the function of the jury to weigh the credibility of witnesses. Ibid. The defendant argued the word "automatically" should have been substituted with "may or may not." Id. at 622. The Supreme Court found no error in the charge, but directed the Model Jury Charges (Criminal) Committee to study the issue. Ibid.
In this case, the trial judge instructed the jury as follows:
The law recognizes that stereotypes about sexual assault complainants may lead some of you to question [J.G.'s] credibility based solely on the fact that she did not complain about the alleged abuse sooner. You may not automatically conclude that [J.G.'s] testimony is untruthful based only on her delayed disclosure. Rather, you may consider the delayed disclosure along with all the other evidence, including [J.G.'s] explanation of her delayed disclosure when you decide how much weight to afford [J.G.'s] testimony.There were no objections regarding the instruction.
Because defendant did not object to the jury charge, we review it for plain error, Rule 2:10-2, which we do not find. The jury charge was issued in accordance with the model jury charge for fresh complaint in effect at the time of trial. Contrary to defendant's contention, W.B. did not necessitate the removal of the word "automatically" from the jury instruction for delayed disclosure, but rather, merely directed the model charge committee to look into the issue in relation to CSAAS jury instructions. W.B., supra, 205 N.J. at 622. Moreover, the Court did not hold in W.B. that the use of the word "automatically" constitutes reversible error; to the contrary, the Court held that it is incumbent upon the accused to object to the word "automatically" if the accused believes it to be prejudicial in the circumstances. Id. at 621-22. Because defendant did not object to the charge given or its inclusion of the word "automatically," we reject his assertion that a new trial is required.
The committee subsequently recommended that the fresh complaint jury charge be revised to remove the word "automatically" from that charge. However, the revision to the fresh complaint charge did not become effective until April 15, 2013, over a year after the trial in this matter was completed.
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V.
Defendant contends in Point V that the detectives improperly failed to advise him that he was a "target" of their investigation at the time they interrogated him and, therefore, his conviction must be reversed. In making this argument, however, defendant acknowledges that our Supreme Court has squarely held that the police are not required to inform a defendant, who has not been formally charged either through a criminal complaint or an arrest warrant, that he or she is the target of their investigation before the interrogation begins. State v. Nyhammer, 197 N.J. 383, 404-05 (2009).
Here, it is undisputed that defendant was not charged with any offense until after the detectives completed their interrogation. Moreover, the detectives fully apprised defendant of his Miranda rights and that they were conducting an investigation of J.G.'s allegation that defendant has sexually assaulted her. Therefore, under Nyhammer, the detectives were not obligated to further advise defendant he was the "target" of a criminal investigation.
VI.
Finally, defendant argues in Point IV that the judge should have merged count two (endangering the welfare of a child) into count one (aggravated sexual assault). He also contends that his sentence was excessive. We disagree with both contentions.
When determining whether to merge convictions, a court should adopt a flexible approach and focus on "the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case." State v. Dillihay, 127 N.J. 42, 47 (1992). Convictions for endangering the welfare of a child should be merged into convictions for aggravated sexual assault when "the record suggests no basis for the endangering conviction beyond the sexual assault." State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992).
However, our Supreme Court has recognized a separate basis for the endangering conviction where there is a "violation of the duty that a parent owes to a child," State v. Miller, 108 N.J. 112, 118-19 (1987), or a violation of a "supervisory relationship," State v. D.R., 109 N.J. 348, 353, 377 (1988). Here, defendant supervised the victim after school and at other times when F.G. was working. Thus, there was clearly a "supervisory relationship" between defendant and J.G. which provided a separate basis for the endangering conviction. Therefore, the trial judge properly denied defendant's request to merge the endangering conviction into defendant's conviction for aggravated sexual assault.
We also reject defendant's contention that his sentence was excessive. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 19-20) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 20; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, (slip op. at 20); O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION