Opinion
DOCKET NO. A-2198-12T4
06-02-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. G.F., Defendant-Appellant.
Pashman Stein, attorneys for appellant (Aidan P. O'Connor, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-00312.
Pashman Stein, attorneys for appellant (Aidan P. O'Connor, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Fedorczyk, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried to a jury, defendant G.F. appeals from his conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count four); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count five); two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts six and seven); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count eight). On November 16, 2012, defendant was sentenced to an aggregate twenty-three year prison term, of which fifteen years were subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
I.
The charges resulted from allegations that defendant engaged in repeated instances of sexual conduct with his daughter, S.F. The alleged abuse occurred over a three-year period from 2006 to 2009, when S.F. was between ages thirteen and sixteen. S.F. testified at trial that defendant initially touched her breasts and vaginal area three to four times, and that the abuse then progressed to sexual intercourse on approximately thirty occasions.
In a prior statement to police, S.F. indicated that defendant engaged in sexual intercourse with her twenty-four times.
According to S.F., the sexual abuse began when she resided with defendant, her mother A.F., younger sister B.F., and two brothers. S.F. and B.F. shared a bedroom in the home, with S.F. sleeping in the bottom bunk of their bunk bed. Although B.F. slept in the top bunk, she testified that she was unaware of the assaults.
Since S.F., her mother and sister share the same initials, for purposes of confidentiality and clarity we designate S.F.'s mother and sister as A.F. and B.F., respectively.
In November 2008, defendant and A.F. separated, and thereafter divorced. Defendant moved out of the family home and rented an apartment in the same town. On alternate weekends S.F. and her siblings visited defendant's apartment, where S.F. had her own bedroom. There, defendant would again quietly enter her room and engage in sexual intercourse with her. S.F. would tell her father to stop, and attempt to push him off. When S.F. resisted defendant's advances, he merely attempted to quiet her down. According to S.F., the sexual assaults ended in June 2009 when she was sixteen-years-old. At that time, defendant forced himself onto her, and the two began to argue. Defendant threatened to hit S.F. with a pipe and refused to let her leave the apartment. Upon leaving the next day, S.F. never returned.
S.F. identified her own embarrassment about the sexual abuse, and the serious ramifications that might befall her father and her family, as reasons that she did not report the abuse when it occurred. S.F.'s silence ended a few months after the last sexual assault. On or about November 20, 2009, S.F. first informed her best friend, Dana, through a note she passed to Dana during class, that her father had raped her. S.F. asked that Dana not repeat to anyone else what she had written. Consequently, neither S.F. nor Dana saved the note, although Dana's testimony at trial regarding its contents and their subsequent conversation was consistent with that of S.F.
A fictional name has been utilized to preserve the confidentiality of the witness and victim.
S.F. returned from school that day in tears and informed her sister B.F. of the sexual abuse. S.F. called her Aunt T. to come to the house, and S.F. then also revealed the abuse to her aunt. Thereafter, S.F.'s mother, A.F., was informed of defendant's misconduct.
After the police were contacted, S.F. agreed to participate in a consensual intercept telephone call with defendant, that the police simultaneously recorded. During this conversation, S.F. confronted her father about the abuse and explained that it had affected her negatively. Among the excerpts from that conversation are the following:
[S.F.]: I said I'm not really being able to focus because what you did to me.
[G.F.]: Oh, you better, you better stop girl.
[S.F.]: If you love me than why did you do what you did?
[G.F.]: You wasn't hurt [S.F.], you wasn't hurt. You was not hurt so why are you trying to make it seem like.
[S.F.]: I'm talking about the sex dad.
[G.F.]: Huh?
[S.F.]: I said I'm talking about the sex.
[G.F.]: [S.F.] we talking about uh, meeting with you, talking, alright, we gotta get a move on and go on because we gotta get you out of high school, so meet with me after school and we go and talk, alright.
[S.F.]: So you can't talk to me now?
[G.F.]: Yes you can, talk right now no, you said you wanted to meet me and I'm in a meeting right now with people and stuff but I don't know if we gonna talk about that.
[S.F.]: Dad.
[G.F.]: We have to move on [S.F.].
[S.F.]: Do you think God forgave you for sleeping with me?
[G.F.]: Say what?
[S.F.]: I said do you think God forgave you for sleeping with me?
[G.F.]: [S.F.], can you come back just call me back tomorrow, okay.
The following day, November 24, 2009, S.F. engaged in another recorded conversation with her father, during which it became apparent he suspected their conversation was being monitored:
[S.F.]: Well promise me that you're not going to do what you did to me.Defendant continued to evade S.F.'s questioning, finally telling her that he would call her when he got to the front of her house. Defendant then called S.F. back and told her "I'm never gonna hurt you again and I make you that promise, alright, god bless you."
[G.F.]: Where you trying to go with this unless. Unless you're trying to set me up, what are you doing what are you doing, is mom there?
Following defendant's arrest on December 1, 2009, he was advised of his Miranda rights and subsequently gave a statement to the police in which he denied the sexual abuse allegations. He declined to testify at trial, call any witnesses, or offer any evidence. The jury found defendant guilty on all eight counts.
Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).
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Defendant appeals, and presents the following arguments for our consideration:
I. THE PROSECUTION IMPROPERLY VOUCHED FOR THE STATE'S WITNESSES (Not Presented Below)We have considered the points raised in light of the record and applicable legal principles. For the reasons that follow, we reject each of the points raised, and affirm defendant's conviction.
II. THE PROSECUTION IMPERMISSIBLY COMMENTED IN CLOSING ON [G.F.]'S FIFTH AMENDMENT RIGHT NOT TO TESTIFY (Not Presented Below)
III. IT WAS PLAIN ERROR TO ALLOW FRESH COMPLAINT HEARSAY TESTIMONY (Not Presented Below)
IV. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT [G.F.] (Not Presented Below)
II.
Initially we note that none of defendant's arguments on appeal were raised before the trial court. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotation marks omitted).
A.
In Point I of his brief, defendant argues that in her summation the prosecutor improperly vouched for the State's witnesses. During trial, the defense attacked the credibility of the State's witnesses, especially S.F. and her family members, and attempted to highlight inconsistencies in their testimony. This theme continued in summation, where defense counsel remarked:
[h]ow m[any] things were added after the fact[] when [S.F.] took the stand. After the fact when she met with the Prosecutor to review her testimony to take the stand in this case, ladies and gentlemen. To reflect back on what wasn't included in the statement. And what you guys would ask, what you guys would demand when you, ladies and gentlemen, should know. She never includes that in her statement. She never includes the layout of the house, the rooms, where the access was.
In response, the prosecutor argued the following:
And, again, you can't have it both way[s]. There's this big delay. It's a conspiracy. It's a plot for everybody to get their stories straight. But, yet in the very same sense you're then criticizing the testimony in saying it's not detailed enough, they don't match, there's no corroboration, there's no this, there's no that, there's no the other thing.
Well, if there's this delay because there's this big plot then you're going to hear everybody coming in and telling you the same thing. But that's not what happened because what they did was they came in here and they [told] you only about what they knew. They told you the truth. This was not a plot. Because I asked different question[s] than the Police Department. Because I reviewed this case and I said, well, this is a question that we should deal with. Because I asked them additional questions and they answered them.
That's part of a plot. I guess I'm in on it too. That has nothing to do with credibility.
Defendant additionally takes issue with another portion of the prosecutor's closing. Defendant's statement to the police had indicated that the allegations were nothing more than female group gossip. Defendant told the police that since the divorce, S.F. was in contact with more people than when he was married to A.F., and stated "I know how girls get together." To this, the prosecutor commented in summation:
[a]nd when you can't blame Mom, because that doesn't pan out. And you can't say [S.F.'s] a liar because that doesn't pan out. Then he comes up with the line something along the lines of well you know when girls get together. So now we're all here because of when girls get together. I guess that's assumed to mean that we're all sitting here today because when girls get together they somehow fabricate stories about their own father sneaking into their bedroom at night and sticking their penis into their vagina.
Defendant's argument that these portions of the State's summation were improper requires our consideration of familiar principles. It is well established that prosecutors "are afforded considerable leeway" when presenting "vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), so long as the prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, State v. Smith, 167 N.J. 158, 178 (2001). See also State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. McGuire, 419 N.J. Super. 88, 142 (App. Div.), certif. denied, 208 N.J. 335 (2011).
Because jurors are likely to accord special deference to the comments of the prosecutor, see State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004); see also Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935), courts have identified particular conduct that must be avoided. For example, prosecutors are prohibited from presenting their personal opinion or beliefs to the jury. Specifically, "[a] prosecutor is guilty of misconduct if he implies to the jury that he possesses knowledge beyond that contained in the evidence presented, or if he reveals that knowledge to the jury," State v. Feaster, 156 N.J. 1, 59 (1998), because "[t]he expression of personal opinion places the prosecutor's own credibility and the prestige of the office against that of defense witnesses," State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). Consequently, prosecutors must refrain from opining "in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence." State v. Thornton, 38 N.J. 380, 398 (1962).
Similarly, a prosecutor may neither personally vouch for a witness nor refer to evidence beyond the record to support a witness's credibility. State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). The ultimate determination of a witness's credibility falls within the exclusive domain of the jury. See, e.g., State v. Frisby, 174 N.J. 583, 593-94 (2002).
Essentially, defendant contends that because the prosecutor attempted to vouch for the credibility of the witnesses, she impermissibly declared her personal beliefs with respect to defendant's guilt. However, defendant did not object to either remark during trial. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999) (internal citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Applying these principles, we conclude that the prosecutor's remarks, while skirting the line of permissible comment, did not cross it. Her comments that she may have been "part of a plot" came in direct response to defense counsel's implication that the State's witnesses had coordinated their stories and added new details after conferring with the prosecutor. Prosecutors are permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996). Likewise, the prosecutor's comments about what defendant said in his statement were either supported by direct evidence in the record or a legitimate inference to be drawn therefrom. Accordingly, we discern no plain error in the admission of the challenged remarks.
B.
In his second point, defendant argues that during summation the State improperly commented on his failure to testify. Specifically, during her closing remarks, in addressing defendant's contention that S.F. had a motive to lie, the prosecutor stated:
Where's the motive? Why is she here telling you all of this? That's something for you to consider too. Where's the logic in what she said versus the words that came out of the [d]efendant's mouth. Weigh them. Part of analyzing the truth is not only thinking
about the words that were actually said, but the things that weren't said. In other words, what somebody could have told you but didn't and who would have known the difference . . . And I ask you to think about what he said and didn't say.
In other words, what somebody could have told you but didn't and who would have known the difference.
The Fifth Amendment forbids a prosecutor from commenting upon a defendant's failure to testify, as such comment would penalize his or her constitutional right against self-incrimination. Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 1232-33, 14 L. Ed. 2d 106, 109-10 (1965). Comment about a defendant's failure to present evidence is impermissible, if it could only be referring to the absence of testimony by the defendant. State v. Sinclair, 49 N.J. 525, 548-49 (1967); State v. Irizarry, 270 N.J. Super. 669, 675 (App. Div. 1994).
Here it is apparent from the context of the prosecutor's remarks, when viewed as a whole, that they did not target defendant's failure to testify at trial. Rather, following this comment, the prosecutor went on to review in detail the substance of defendant's statement to the police, and his recorded conversations with S.F. A prosecutor's comments during summation should not be reviewed in a vacuum, rather, they must be considered "in the context of the trial as a whole[.]" State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).
Again, we note that the prosecutor's remarks were not objected to, so generally they will not be viewed as prejudicial. Timmendequas, supra, 161 N.J. at 575-76. Nor, when viewed in context, were the remarks "so egregious that [they] deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.
C.
Defendant also argues for the first time on appeal that the introduction of fresh complaint testimony, that was not objected to at trial, amounted to plain error because S.F.'s statements were not made within a reasonable time after the alleged abuse. In response, the State argues that admission of the fresh complaint testimony was proper, as S.F.'s statements were made in the ordinary course of events, to her best friend and close family members, four to five months after the abuse ended.
As an un-codified hearsay exception, the fresh-complaint rule allows the State to introduce a sexual victim's out-of-court revelation of such conduct to a confidante shortly after the conduct occurs. Fresh-complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. State v. W.B., 205 N.J. 588, 616-17 (2011).
"[T]o qualify as fresh complaint [testimony], the victim's statements to someone [he or] she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." Id. at 616. "Whether these criteria for admissibility are satisfied is committed to the sound discretion of the trial judge." Ibid. (citing State v. Bethune, 121 N.J. 137, 147-48 (1990)).
Of particular importance here, "[t]he requirement that a victim's statements be made within a reasonable time after an alleged sexual assault to be admissible under the fresh complaint rule is applied more flexibly in cases involving children than in those involving adults[.]" State v. L.P., 352 N.J. Super. 369, 382 (App. Div.), cert. denied, 174 N.J. 546 (2002). The relaxed timing requirements are justified because of "children's special vulnerability to being cajoled and coerced into remaining silent by their abusers[.]" Bethune, supra, 121 N.J. at 143.
For example, in State v. Hummel, 132 N.J. Super. 412, 423 (App. Div.), certif. denied, 67 N.J. 102 (1975), we held that fresh-complaint witnesses could testify to statements that were made three years after the beginning of the assaults and four to six weeks after they ended. In L.P., we noted that "courts in other jurisdictions have upheld the admission of evidence of statements by alleged child sexual abuse victims under the fresh complaint rule in cases where victims have delayed even longer than in Hummel before disclosing the abuse." L.P., supra, 352 N.J. Super. at 383 (citing Commonwealth v. McKinnon, 620 N.E.2d 792 (1993), in which the court upheld a thirty-four month delay); see also W.B., supra, permitting fresh-complaint testimony where the victim complained more than a year and a half after the abuse. 205 N.J. at 619.
Here, numerous factors support admission of the fresh-complaint testimony. First, S.F. was a child when the sexual abuse occurred and, therefore, the "special vulnerability" of children warrants additional "flexibility" in construing the fresh-complaint rule. L.P., supra, 352 N.J. Super. at 382; Bethune, supra, 121 N.J. at 143. Moreover, S.F.'s confidantes, who included her sister, mother, and best friend, surely qualify as individuals she would be expected to turn to for support. Given S.F.'s stated reasons, i.e., her embarrassment and her concern for the consequences to her family and defendant, we do not view as unreasonable her four-to-five month delay in reporting the abuse after it ended. Finally, we note that the trial judge properly instructed the jury on fresh complaint testimony, and there were no objections regarding the instruction. We thus discern no error.
D.
Finally, defendant claims for the first time on appeal that his convictions were against the weight of the evidence. We reject this argument on both procedural and substantive grounds.
Rule 2:10-1 expressly provides that
[i]n both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.Since defendant failed to move for a new trial, he is procedurally barred by the rule from raising this issue on appeal.
Notwithstanding, had a new trial motion been filed, our task on appeal would be to determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Here, the jury was free to accept or reject the credibility of the State's witnesses, and it had the ability to weigh and consider defendant's statement to police and his recorded conversations with S.F. The jury ultimately found S.F's allegations of abuse credible, and we will not interfere with that result.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION