Opinion
DOCKET NO. A-3396-11T4
01-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.H., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-00483. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried before a jury on a five-count indictment, defendant J.H. was convicted of first-degree aggravated sexual assault (sexual penetration upon X.W. when X.W. was less than 13 years old), N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault (sexual contact with X.W. for the purpose of sexually arousing or sexually gratifying himself and/or to humiliate or degrade X.W., when X.W. was less than 13 years old, with [J.H.], being at least 4 years older than X.W.), N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four); and third degree criminal restraint, N.J.S.A. 2C:13-2 (count five).
Judge Diane Pincus sentenced defendant on count one to an extended term of forty years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As to counts two and three, the judge imposed concurrent eight-year sentences. Defendant received four years each for counts four and five, to run concurrently with the other counts. He was also sentenced to parole supervision for life under N.J.S.A. 2C:43-6.4. The judge also imposed appropriate fines and penalties.
I
Defendant raises the following contentions on appeal:
I. THE IMPROPER ADMISSION OF X.W.'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING SEXUAL ABUSE, PURSUANT TO N.J.R.E. 803(C)(27), DENIED DEFENDANT THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10).
II. THE TRIAL COURT ERRONEOUSLY RULED THAT DEFENDANT'S 1992 NARCOTICS CONVICTION AND 2002 MEGAN'S LAW VIOLATION COULD BE INTRODUCED BY THE STATE TO IMPEACH HIS CREDIBILITY IF HE TESTIFIED IN HIS OWN DEFENSE.After reviewing the record in light of the contentions advanced on appeal, we affirm.
III. THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY DEMONSTRATE THAT X.W. WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (Not Raised Below).
IV. THE CUMULATIVE IMPACT OF THESE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
V. THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.
A. The trial court erred in sentencing defendant to an extended term on Count one.
B. The trial court applied inappropriate aggravating factors to defendant's sentence and double-counted defendant's prior criminal record to justify application of certain aggravating factors.
The State presented the following proofs at trial. X.W., born January 29, 1999, moved in with her maternal grandmother, D.W., in 2009. Defendant, D.W.'s boyfriend, also resided in the home, along with the couple's two children and X.W.'s brother. On July 6, 2009, D.W. asked a sixteen year-old family friend, L.H., to babysit X.W. and the other children. Before D.W. left the house, she instructed L.H. not to open the door for anyone. Specifically, she told L.H. not to open the door for defendant, because when he gets intoxicated, "it's not good."
Defendant showed up to the house that night and attempted to force his way inside. He was intoxicated and smelled like alcohol. Despite L.H.'s effort to keep him out, defendant was able to push the door open. At that point, L.H. instructed the children to go upstairs. When she followed to check on the children, she noticed X.W. was crying. In that moment, X.W. told L.H. that she did not want to stay in the house anymore because J.H. "touches me down there."
Hiding in one of the upstairs bedrooms with the children, L.H. looked out the door to see if she could access a phone to call for help. When she looked, she saw defendant sitting on the steps in only his underwear. Eventually, she was successful in calling her aunt, T.R., who responded and came to the house with two other individuals, Y.H. and S.H.
After arriving at the home, Y.H. asked X.W. what was going on, and X.W. indicated that defendant had been touching her. Y.H. testified that J.H. heard what X.W. told her, and responded in an intimidating manner, "Oh I touched you? [X.M.], I touched you?" X.M. responded, saying "[d]on't lie [J.H.]. You know you touched me. You know what you did." S.H. also asked X.W. what was going on that night and elicited the same response. The children were then taken from the house, and X.W. was taken to the Prosecutor's Office.
On July 10, 2009, the Middlesex County Prosecutor's Office conducted a forensic interview of X.W. The interview was recorded and played for the jury. X.W. explained in the interview that defendant and D.W. got drunk almost every day. When D.W. was out of the house, defendant would come to X.W.'s bedside, force her to undress, tie her up with a rope, tape her mouth, and then lick and molest her. The interview also consisted of X.W. demonstrating with anatomical dolls how defendant assaulted her. X.W. noted that defendant inserted his penis into her vagina "[l]ike twice." At trial, X.W.'s testimony was slightly different. She did not recall defendant using rope or tape on her, and she testified that he penetrated her "[a] lot of times."
The State also called an expert in child sexual abuse accommodation syndrome. The expert explained that secrecy and helplessness are "pre-conditions" for behaviors such as entrapment and accommodation, delayed or unconvincing disclosure, and retraction or recantation.
In addition to the interview at the prosecutor's office, X.W. was examined by Dr. Linda Shaw, a pediatrician who specializes in child abuse. Dr. Shaw testified at trial. In that regard, X.W. had expressed the same story to Dr. Shaw as she did to the Prosecutor's Office. She included, however, that defendant showed her "TV previews" of men and women touching private parts, that it hurt when defendant's penis penetrated her vagina, and that she felt a burning sensation when she urinated. A physical examination revealed redness in the anal and genital areas. X.W. had hymenal tissue missing from her vaginal area. Defendant was found guilty on the above evidence.
II
Defendant's first four points address evidentiary rulings by the trial judge. Specifically, the objections are to the trial court's application of the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27); ruling on the admissibility of J.H.'s 1992 CDS conviction and 2002 Megan's Law violation, pursuant to N.J.R.E. 609; and failure to examine and demonstrate that X.W. was competent to testify, pursuant to N.J.R.E. 601. Additionally, defendant argues that the cumulative effect of the evidentiary rulings by the trial court denied him the right to a fair trial. For the reasons set forth herein, we disagree and affirm J.H.'s conviction.
Appellate courts review evidentiary rulings for abuse of discretion. State v. Robinson, 200 N.J. 1, 15 (2009); State v. P.S., 202 N.J. 232, 250 (2010); State v. Locurto, 157, N.J. 463, 474 (1999). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." P.S., supra, 202 N.J. at 250 (citing State v. Elders, 192 N.J. 224, 243 (2007)) (quotations omitted). Deference will not be afforded, however, if the trial court has misapplied the law to an evidentiary issue. State v. Rose, 206 N.J. 141, 157 (2011). With regard to evidence admitted at trial without objection, we review for plain error, and reverse only if the error is "clearly capable of producing an unjust result." R. 2:10-2; Rose, supra, 206 N.J. at 157.
With those standards in mind, we consider the evidentiary objections raised by defendant.
A
Defendant challenges the judge's application of the "tender-years" exception to the hearsay rule, N.J.R.E. 803(c)(27). Specifically, he argues that X.W.'s statements to L.H., S.H., and Y.H., and her videotaped interview at the Prosecutor's Office were improperly admitted because they were inconsistent with her trial testimony. In that respect, he maintains X.W.'s inconsistency was indicative of prejudice and untrustworthiness, and was unduly suggestive. Again, we disagree.
N.J.R.E. 803(c)(27) provides:
A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . .The "tender-years" exception to the hearsay rule was adopted in recognition of the importance of the testimony of a child who is a victim of sexual misconduct, the potential reliability and credibility of the victim's spontaneous out-of-court statements, the impact of lapse of time, and the stress of the courtroom setting on the child's ability to testify credibly before the jury. State v. D.R., 109 N.J. 348, 358-60 (1988); State v. Burr, 392 N.J. Super. 538, 565-66 (App. Div. 2007), aff'd as modified on other grounds, 195 N.J. 119 (2008).
Here, there is no dispute that the age requirement was met. X.W. was ten when she was interviewed, and the age of the child at the time of the statement, not the time of trial, controls. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). Defendant also had prior notice of the State's intention to introduce the statement, as well as notice of the statement's content. Regarding the requirement articulated in subsection (c) of N.J.R.E. 803(c)(27), X.W. planned to, and did, testify at trial. Thus, the only condition in dispute is whether the statements to L.H., S.H., and Y.H., and the video interview were trustworthy.
The question of whether an out-of-court statement is trustworthy requires consideration of the totality of the circumstances and an assessment of sufficient reliability "based on the 'time, content and circumstances of the statement.'" P.S., supra, 202 N.J. at 249 (quoting State v. D.G., 157 N.J. 112, 128 (1999)). In Idaho v. Wright, the United States Supreme Court provided a list of factors to be considered by a trial judge in making such a determination. 497 U.S. 805, 821-22, 827, 110 S. Ct. 3139, 3150, 3153, 111 L. Ed. 2d 638, 656, 659-60 (1990); see also State v. D.G., 157 N.J. 112, 125 (1999). The non-exclusive list includes "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, [the] interrogation, and manipulation by adults." Ibid. Although the list is non-exhaustive, factors must relate to "whether the child declarant was particularly likely to be telling the truth when the statement was made." Ibid.
A trial court must also determine whether the methods used to elicit a child's out-of-court statement have the requisite indicia of reliability. State v. Michaels, 136 N.J. 299 (1994). In Michaels, our Supreme Court concluded that "sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events . . . ." Id. at 312-13. Therefore, a court should consider details such as "lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements[.]" P.S., supra, 202 N.J. at 250 (quoting Michaels, supra, 136 N.J. at 309).
Our Supreme Court in Michaels "underscored the importance of videotaping child interviews and held that such videotapes should be considered in any trustworthiness analysis." P.S., supra, 202 N.J. at 250 (citing Michaels, supra, 136 N.J. at 313-14).
--------
In this case, the motion judge found X.W.'s statements to L.H., S.H., and Y.H. trustworthy. She found the witnesses credible, and found X.W.'s statements spontaneous and free from suggestiveness. In ruling the statements admissible, the judge noted the disclosures to L.H., S.H., and Y.H. were without prompting or coerciveness. Instead, X.W.'s statements were made in the midst of a highly stressful incident, when defendant entered the home and caused fear and duress. When L.H. went to check on the children, X.W. was crying and spontaneously disclosed that defendant had been touching her. Regarding the statements to S.H. and Y.H., each was made in response to mere inquiry about what was going on in the home. See State v. Conigliaro, 365 N.J. Super. 54, 63 (App. Div. 2002) (stating that spontaneity is determined by "'the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness'" (quoting State v. Lyle, 73 N.J. 403, 413 (1977))).
The motion judge also considered X.W.'s "consistency of repetition" in finding her out-of-court statements trustworthy. In each statement, including the recorded interview, X.W. stated that defendant acted inappropriately, touched her breasts, and touched her "down there." Notwithstanding the additional allegation that defendant used ropes at times, which X.W. did not testify to during trial, X.W. did not waiver from the essential details of her assault. Therefore, having considered X.W.'s mental state, spontaneity, consistency of repetition, and the totality of the circumstances, the motion judge did not abuse her discretion, but based her findings on sufficient credible evidence in the record.
Recognizing the interview does not share the same spontaneity, we look for evidence of coercion or attempt to shape the dialogue. We find none. As the motion judge noted, "the investigator did not speak to [X.W.] before at all, nor did she speak to her even during the break when they went to the bathroom, nor did [X.W.] appear to speak to anybody else." Having reviewed the DVD, the judge
found that there were no words put into the child's mouth. In fact, . . . the investigator really did the appropriate interview technique in letting the child say what happened and then taking what the child said and following up in the next question. Clearly, not suggesting anything, no coercing her, but taking the child's own words and asking what happened next. Very open ended.With the judge's credibility and factual findings in mind, and having reviewed the record, we find the evidence supports the ruling that X.W.'s interview was reliable and trustworthy.
B
The second point raised by defendant addresses the court's ruling on the admissibility of his prior convictions for the purpose of impeachment. In that respect, the record revealed the following: In 1983, defendant received an aggregate of twenty-two years imprisonment for aggravated sexual assault and kidnapping. In 1992, he pled guilty to possession of CDS, with the intent to distribute, within a school zone.
On those facts, defendant moved for a Sands hearing after jury selection, but prior to opening statements. State v. Sands, 76 N.J. 127 (1978). The trial judge excluded the first conviction, but permitted the second. At the conclusion of trial, but before closing arguments, the State discovered a third conviction for violating Megan's Law, in 2002. Defense counsel did not object to the court admitting the 2002 conviction. However, she successfully "ask[ed] the [c]ourt to sanitize the failure to register portion, which, obviously, would be very prejudicial, due to the nature of the case."
On appeal, defendant argues the trial court erred in determining his 1992 narcotics conviction, as well as his 2002 Megan's Law conviction were admissible for impeachment purposes. Specifically, he argues the court failed to determine whether the probative value of those convictions outweighed their prejudicial effect. Defendant also argues the court erred in not agreeing that the 1992 conviction be sanitized. We disagree and find that the trial court properly addressed these issues.
N.J.R.E. 609 provides that the conviction of a witness shall be admitted for impeachment and credibility purposes unless excluded by the judge as remote or for other causes. In Sands, supra, our Supreme Court held that when determining whether a prior conviction is admissible for the purpose of impeachment, a court must "balance the lapse of time and the nature of the crime to determine whether the relevance with respect to the credibility outweighs the prejudicial effect to the defendant." 76 N.J. at 144-45. A Sands ruling rests with the sound discretion of the trial court, and should not be reversed except for an abuse of discretion reflecting clear error of judgment. State v. Harris, 209 N.J. 431, 439 (2012).
If a trial judge allows in a prior conviction under N.J.R.E. 609 "that is the same as or similar to the offense charged, the court should prevent the jury from hearing the specifics of the prior offense." State v. Hamilton, 193 N.J. 255, 257 (2008) (citing State v. Brunson, 132 N.J. 377, 391 (1993)). Where a prior conviction is not for the same or similar crime, "courts have the authority to take steps to neutralize the highly prejudicial effect of particular prior- conviction evidence by eliminating reference to the specifics of the earlier crime." Id. at 268.
In reviewing the trial judge's determination, there is no evidence that she abused her discretion. With respect to the 1992 conviction, the judge considered both the remoteness of defendant's conviction as well as the nature of the crime. Specifically, she discounted the remoteness in time by emphasizing the brevity between defendant completing his 1983 sentence and pleading guilty to the CDS crimes in 1992. Furthermore, she noted the severity and quickness of recidivism. As for the 2002 conviction, the trial judge properly found the eight-year-old Megan's Law violation was not too remote in time, and was appropriate evidence to assist a jury in considering defendant's veracity on the stand.
C
In point III, defendant argues for the first time that the court erred in failing to determine whether X.W. was competent to testify. We review issues raised for the first time on appeal under the plain error standard. R. 2:10-2. Thus, we are required to consider whether "the possibility of injustice [was] '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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
The determination of whether a person is competent to testify is within the discretion of the trial judge. State v. G.C., 188 N.J. 118, 132 (2006). As a general rule, every person is presumed competent to testify. State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997). Thus, disqualification of a witness is the exception to the presumption of witness competency. G.C., supra, 188 N.J. at 132. In fact, as is relevant here, "children, as a class, are not to be viewed as inherently suspect witnesses." Michaels, supra, 136 N.J. at 308.
As noted in Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 5 to N.J.R.E. 601, a youthful sex abuse victim is not barred:
from testifying at trial where the State has introduced into evidence their out-of-court statements concerning acts of sexual molestation because N.J.R.E. 803(c)(27), which was proposed by the Supreme Court in [D.R., supra,] now requires the declarant of any such statement to testify, if he is available to do so, as a prerequisite to admission of the statement. This is to avoid the incongruity of finding the child incapable of understanding the duty to tell the truth, and therefore incompetent, and thereafter admitting into evidence, insulated from cross-examination, his out-of-court statements made months before. The rule also permits the jury to better
evaluate the testimony concerning the child's out-of-court statements in light of the communicative skills, demeanor and credibility he displays from the witness stand.
[Ibid. (citations omitted).]
Applying these standards, we conclude the judge did not err by failing to adequately demonstrate that X.W. was competent to testify. X.W. was at least ten the time of trial. Thus, this was not a case where an infant was testifying. There is nothing in the record to indicate the victim was not competent to testify, and as stated above, defendant did not challenge the victim's competency at the time of trial. Under these circumstances, we reject defendant's contention on this point.
D
In point IV of his brief, defendant argues that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected defendant's argument that any error occurred during the trial, we also reject his cumulative error argument.
III
Defendant, in Point V of his brief, argues his aggregate forty-year sentence was excessive. Specifically, his extended sentence was improperly imposed, and elements of the offenses and his prior criminal record were double-counted when the trial judge applied aggravating factors and extended terms. We disagree and affirm defendant's sentence.
Our review of a trial judge's sentencing decision is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). Under this standard, a criminal sentence must be affirmed unless: (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on "competent credible evidence in the record;" or (3) the application of the guidelines made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). Thus, "an appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supplied by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (quotations and citations omitted); see also State v. Case, ___ N.J. ___ (2014).
The State moved to sentence defendant to an extended sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Defendant clearly met the minimum criteria for a persistent offender:
a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
Defendant also qualified for an extended sentence under N.J.S.A. 2C:44-3(g), as he was convicted of a crime under N.J.S.A. 2C:14-2, "involving violence or the threat of violence and the victim of the crime was 16 years of age or less." N.J.S.A. 2C:44-3(g). Because the court properly concluded a discretionary extended-term sentence was permissible, it was then permitted to impose a sentence within the minimum ordinary-term and maximum extended-term range. State v. Pierce, 188 N.J. 155, 169 (2006). A sentence within that range remains in the sound discretion of the trial judge. Ibid.
At the sentencing hearing, the trial judge noted: "In my career I have seen many child victims of sexual assault but I have never seen one who was more upset and afraid. This victim couldn't stop shaking and crying throughout her testimony so much so that her whole body shook and she couldn't get the words out." It is in that light that the judge applied the aggravating and mitigating factors.
The judge found aggravating factor one applied: "The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2C:44-1(a)(1). We agree.
The judge also found aggravating factor two applied: "the gravity and seriousness of the harm inflicted on the victim[.]" N.J.S.A. 2C:44-1(a)(2). X.W. was nine and ten years old, and was "gravely traumatized by the defendant's conduct." As for aggravating factor three, the judge found defendant was at risk to commit another offense. N.J.S.A. 2C:44-1(a)(2). In addition to the above, the judge found aggravating factors four, six, and nine applied: "a lesser sentence [would] depreciate the seriousness of the defendant's offense," N.J.S.A. 2C:44-1(a)(4); the content and extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(6); and, the "need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1(a)(9). The judge did not find any mitigating factors, nor did defense counsel submit any for the court to consider.
Here, because the judge did not abuse her discretion in sentencing defendant, we find the sentence was within the guidelines, and was based on the evidence in the record.
Affirmed.