Opinion
DOCKET NO. A-1061-14T4
12-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE V. JIMENEZ a/k/a FRANCISCO J. JIMENEZ, JOSE LOPEZ, Defendant-Appellant.
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the brief). Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Quigley, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-08-0596. Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the brief). Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Quigley, of counsel and on the brief). PER CURIAM
Defendant, Jose V. Jimenez, appeals from his conviction for sexual assault, sexual contact and endangering the welfare of a child. On appeal, defendant argues that the admission of fresh- complaint evidence was erroneous and that the prosecutor's comments in summation were prejudicial. Defendant and the State agree that, due to the errors in the sentence, the matter should be remanded. We affirm the convictions and remand for re-sentence.
Defendant was indicted by a Union County Grand Jury on one count of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and one count of second-degree endangering the welfare of a child. Prior to trial, the judge amended the endangering count to third degree on the State's motion. The matter then proceeded to trial. The jury acquitted defendant of aggravated sexual assault and convicted him of sexual assault, criminal sexual contact (as a lesser-included offense of sexual assault) and endangering the welfare of a child.
Defendant was sentenced to a term of eight years in state prison with an eighty-five percent period of parole ineligibility. The judge imposed fines, assessment penalties and a parole supervision fee.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED BY ADMITTING FRESH-COMPLAINT TESTIMONY FROM THE COMPLAINANT'S MOTHER BECAUSE: (1) THE COMPLAINT WAS NOT TIMELY; (2) THE COMPLAINT WAS NOT
SPONTANEOUS; [] (3) THE STATE FAILED TO ESTABLISH THAT THE COMPLAINT WAS NOT THE PRODUCT OF COERCIVE QUESTIONING; [(4)] THE PROSECUTOR COMPOUNDED THE ERROR BY MISUSING THE FRESH-COMPLAINT TESTIMONY TO BOLSTER THE COMPLAINANT'S CREDIBILITY. (Partially Raised Below)
POINT II
THE TRIAL COURT SHOULD HAVE MERGED THE ENDANGERING CONVICTION (COUNT FOUR) WITH THE SEXUAL CONTACT AND SEXUAL ASSAULT CONVICTIONS (COUNTS TWO AND THREE) BECAUSE THE STATE OFFERED NO ADDITIONAL PROOF OF ENDANGERING AND THE STATE CONCEDED THAT JIMENEZ HAD NO LEGAL DUTY OF CARE. (Not Raised Below)
POINT III
THE JURY CONVICTED JIMENEZ OF ENDANGERING IN THE THIRD DEGREE, BUT THE TRIAL COURT IMPROPERLY SENTENCED HIM AS THOUGH HE HAD BEEN FOUND GUILTY OF ENDANGERING IN THE SECOND DEGREE. (Not Raised Below)
POINT IV
THE TRIAL COURT ERRED BY ORDERING JIMENEZ TO PAY $2,500 TOWARD THE SEX CRIME VICTIM TREATMENT FUND WITHOUT CONSIDERING HIS ABILITY TO PAY. THE COURT'S ORDER ALSO MISCALCULATED THE APPLICABLE STATUTORY MAXIMUM UNDER N.J.S.A. 2C:14-10 REGARDLESS OF HIS ABILITY TO PAY. (Not Raised Below)
POINT V
THE TRIAL COURT ERRED BY PENALIZING JIMENEZ WITH A MONTHLY PAROLE FEE AUTHORIZED BY A STATUTE, N.J.S.A. 30:4-123.97, THAT BECAME
EFFECTIVE ONLY AFTER JIMENEZ HAD ALREADY BEEN CONVICTED. (Not Raised Below)
We have edited the redundant subsections of Point I.
We confine our statement of facts and procedural history to that required for the purpose of our decision.
In October 2003, the victim, David, then six years old, and his seven-year-old sister, came from Costa Rica to live with their mother, Elaine, in New Jersey. At that time, Elaine rented a room in defendant's house. Elaine and defendant were dating when her children came to live with her.
For purpose of confidentiality, we utilize fictitious names for the victim and his family.
Two months after their arrival, Elaine and the children relocated to another apartment on the same street. Despite the change in residence, the children saw defendant every day. Defendant and David had a close relationship and defendant was considered a "father figure" to David. Defendant would help David with his homework, teach him English, and they would watch movies together. Defendant constructed a "hang out space" in the second-floor loft of the detached garage at his house where the family would get together. It was carpeted space with a large leather couch and a television.
When David was eight years old, defendant and David were laying on the couch in the garage. Elaine left the garage to do something in the kitchen. While feigning he was sleeping, defendant took David's hand and placed it on his penis. Defendant's penis slowly became erect and David masturbated defendant.
Around this time, defendant and Elaine terminated their dating relationship. David continued to see defendant. When David would see defendant's dog outside, he would ask his mother if he could visit defendant. Elaine would tell David to be careful and to stay outside.
The sexual activity that took place between defendant and David commenced when David was eight years old and continued until 2011 when David was thirteen years old. Defendant and David would shower together and grope one another. As David grew older, the sexual activity escalated. When David was ten years old, defendant and David engaged in acts of mutual oral sex. When David was thirteen, he asked defendant whether he ever had anal sex and if he liked it. Defendant responded "yes" to both questions. A few weeks later, David went to defendant's home to visit the dog. When David arrived, he gave defendant a hug and the two went into the garage, where defendant stated, "I'm going to [f- - -] you." Defendant then anally penetrated David on the couch. Subsequent to the sexual activity between them, defendant would often take David out to eat, to the movies, or to Toys "R" Us.
A few weeks after the first act of anal penetration, defendant attempted to have anal sex with David again. When defendant penetrated David, he "freaked out" due to the pain. David pulled up his pants and went home.
This was the last sexual activity between defendant and David. A few months later, defendant and David went to a movie without engaging in sexual activity. This was the last time David saw defendant.
The acts of anal penetration were alleged by David to have occurred in August and September 2011. However, David told Elaine that the last time he saw defendant was in June 2011.
During the time defendant and David engaged in the sexual activity, David came to the realization their relationship was not the "norm" and was not acceptable. However, David did not disclose the activity because he did not want defendant to get in trouble.
On December 8, 2011, when David was thirteen years old, Elaine took him to see a therapist because David was stealing his sister's clothes and changing into them at school. Elaine saw the same therapist once a week so the therapist could learn more about the family's history. During a therapy session, David disclosed to the therapist the sexual relationship he had with defendant. Both David and the therapist decided to tell Elaine about the sexual abuse.
On January 25, 2012, Elaine and David saw the therapist together. The therapist first asked Elaine to wait outside the office while she spoke with David. When Elaine entered the office, the therapist asked Elaine to sit down and listen to what David had to say. Crying, David told his mother that defendant sexually abused him several times in defendant's garage, and that he wanted to tell her in front of the therapist so that she would believe him. David related he felt bad telling his mother about the abuse because he knew she had trusted defendant.
Elaine called her brother to pick up David from the therapy session. She asked the therapist what she should do next. The therapist told her to call the Division of Youth and Family Services (DYFS). Elaine called DYFS at 6:30 that evening. The next day, Elaine took David to school. After returning home, two police officers arrived at her house and asked if she could bring David to the police department after school, which she did. The next day, a complaint was filed against defendant.
Now the Division of Child Protection and Permanency.
Prior to trial, the State moved to introduce a portion of Elaine's testimony as "fresh-complaint" evidence. The defendant objected, arguing that the testimony was not "fresh complaint" because the alleged abuse occurred over the course of several years. Predicated upon the objection, the judge conducted a pre-trial hearing pursuant to N.J.R.E. 104(a).
Elaine testified at the hearing. She stated that after she terminated her romantic relationship with defendant in 2005, she still recognized him as a "father figure" to David. Elaine also testified that she was aware David was still seeing defendant for years after the break-up.
Elaine further testified that when she became aware in September 2011 that David was changing into his sister's clothes at school, she spoke to him but David continued to engage in the conduct despite being confronted. It was then that she arranged for David to attend therapy, which commenced in December. Elaine also received individual therapy. David and Elaine's therapy sessions were not held together. David did not relate to Elaine what was discussed during his sessions except to advise her he was "feeling better, was comfortable and happy."
In January 2012, David's therapist requested that Elaine attend David's session. At that session, David revealed to Elaine that defendant had sexually abused him for a period of years. This was the first time Elaine was made aware of the complaint, and she believed the last time David saw defendant was seven months prior.
In State v. Hill, 121 N.J. 150, 163 (1990), our Supreme Court described the "three-prong test" for "fresh-complaint" evidence:
[T]o qualify as fresh complaint, the victim's statements to someone 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. At trial, fresh-complaint evidence serves a narrow purpose. It allows the State to negate the inference that the victim was not sexually assaulted because of her silence. Only the fact of the complaint, not the details, is admissible. In addition, the victim must be a witness in order for the State to introduce fresh-complaint evidence.
[(internal citations omitted).]
In reviewing the evidence from the hearing, the judge, after citing Hill, found David's statement was made to "the therapist, as well as the mother, [who] are the people that the victim would turn to for support." The judge considered the reasonableness of the timeframe for the disclosure and held that the seven-month period from the last alleged sexual act until disclosure was reasonable under the circumstances, thereby falling within the parameters of the Hill three-pronged test. The judge held that David's statement was voluntary, without interrogation by Elaine, and that that the statement was "spontaneous" and the result of the therapy. Accordingly, the judge concluded that the statement was admissible.
Defendant argues that the fresh complaint was not timely, not spontaneous, and that the State did not demonstrate the complaint was not the product of coercion. We disagree.
Ordinarily, a "fresh complaint" must be made within a reasonable time after the act(s) occurred. State v. Buscham, 360 N.J. Super. 346, 357 (App. Div. 2003); State v. Bethune, 232 N.J. Super. 532, 535 (App. Div. 1988), aff'd, 121 N.J. 137 (1990). However, the lapse of time between the incident(s) and the reporting does not bar the statement if explainable by the youth of the victim and the statement's attendant circumstances. Bethune, supra, 121 N.J. at 143.
In State v. W.B., 205 N.J. 588 (2011), our Supreme Court noted that an interval of fifteen months was reasonable for a fourteen-year-old sexual assault victim. In reaching its determination the Court held:
It is well settled that the requirement of reporting a sexual assault within a reasonable time must be "applied more flexibly in cases involving children than in [cases] involving adults." [State v. L.P., 352 N.J. Super. 369, 382 (App. Div.), certif. denied, 174 N.J. 546 (2002)]. In deference to children's "special vulnerability to being cajoled and coerced into remaining silent by their abusers, courts allow children additional time to make a fresh complaint." [Bethune, supra, 121 N.J. at 143, 578]. Stated differently, the reasonable time component of the fresh complaint rule must be applied flexibly "in light of the reluctance of children to
report a sexual assault and their limited understanding of what was done to them." [State v. P.H., 178 N.J. 378, 393 (2004)].
[(W.B., supra, 205 N.J. at 618).].
Here, the sexual assaults took place over an extended period of time from when David was of "tender years" until he was a young teen. As we have recognized, a child sexual assault victim "commonly exhibit[s] behavioral traits, including secrecy, helplessness, accommodation and delayed disclosure." L.P., supra, 352 N.J. Super. at 383-84. The "father figure" relationship between defendant and David, and David's desire not to get defendant in trouble, are factors properly considered in determining the "reasonableness" of the timing of the complaint. Accordingly, we conclude that the interval between the last sexual assault and the complaint was reasonable for purpose of admitting the fresh-complaint testimony.
We reject defendant's argument that the timeframe should be measured from the first sexual act as inconsistent with controlling decisions of law dealing with child abuse victims. As the Court held, fresh-complaint evidence may be admitted where the statement is made "within a reasonable time" of the offense. Hill, supra, 121 N.J. at 163. This court has consistently held that a "reasonable time" is not measured from the time of the first occurrence where there is more than one occurrence. See, e.g., State v. Pillar, 359 N.J. Super. 249, 258-61, 286-87 (App. Div.) (affirming admission of fresh-complaint evidence involving seven-year pattern of abuse because last instance of abuse was "reasonably contemporaneous" with complaint), certif. denied, 177 N.J. 572 (2003); L.P., supra, 352 N.J. Super. at 374 (where incidents occurred over a three-year period but were not reported until roughly nine months after leaving defendant's household) State v. Hummel, 132 N.J. Super. 412, 418-19 (App. Div.) (where incidents occurred over a three-year period but were not reported until four to six weeks after leaving defendant's household), certif. denied, 67 N.J. 102 (1975). --------
We also conclude there is no basis to find that the statement may have been potentially procured by the therapist's coercive interrogation. In reaching our decision, we acknowledge that the therapist did not testify at the hearing. Even in the absence of such testimony, we are sufficiently informed by the record as to the circumstances which produced the statement.
David was receiving counselling for the purpose of determining the cause for his behavior in dressing in his sister's clothes. At the inception of the therapy, David did not report to Elaine or the therapist that sexual activity had occurred between him and defendant. Therefore, the prospect of a "pointed inquiry" producing the statement was unlikely. When that unlikely prospect is combined with the circumstances which resulted in David's revelation, i.e., therapeutic counselling, the record is devoid of any suggestion of coercion. As the Court noted in Hill, "[w]e leave it to the trial court to determine in each case 'when that line is crossed.'" Hill, supra, 121 N.J. at 167 (citation omitted). In gauging defendant's claim of potential coercion, we discern no basis to disturb the court's determination.
Defendant next argues that the State used David's fresh-complaint testimony during summation to bolster David's testimony. Again, we disagree.
Given defendant's failure to object, we review under the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971).
During summation, the prosecutor argued:
Why on earth would [David] take this person, this person who earned his trust, who manipulated him, why on earth would he take this person and then say I do not want a father figure anymore, I am just going to make up this whole sexual abuse and I am going to do it a few months after the last incident and then I am not just going to stay once in therapy, I am going to stay in therapy for a significant period of time?The prosecutor also argued, "You either believe that David is telling the truth or he's lying."
"A prosecutor is given 'considerable leeway in summing up the State's case.'" State v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009) (quoting State v. Williams, 113 N.J. 393 (1988)). They may even do so "graphically and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div.), certif. denied, 114 N.J. 314 (1988); see also State v. Johnson, 287 N.J. Super. 247, 265 (App. Div.), certif. denied, 144 N.J. 587 (1996).
A conviction will not be reversed based on a prosecutor's unfair comment unless it is "clearly and unmistakably improper" and if the comment "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. McGuire, 419 N.J. Super. 88, 150 (App. Div.), certif. denied, 208 N.J. 335 (2011) (internal citations and quotations omitted). In weighing whether a prosecutor engaged in misconduct during summation, a reviewing court must examine "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court gave the jury a curative instruction." Atkins, supra, 405 N.J. Super. at 401 (internal quotation marks omitted) (quoting State v. W.L., Sr., 292 N.J. Super. 100, 110 (App. Div. 1996)).
Fresh-complaint testimony may not be used to corroborate the victim's trial testimony. State v. R.K., 220 N.J. 444, 456 (2015). Here, the record does not support the claim that the alleged "offending" comments, taken in context, were used to "corroborate" David's testimony. The comment was made in response to defense counsel's attempt to portray David as a confused child. It was made to rebut defendant's attacks on David's credibility.
The judge also instructed the jury on how comments made by counsel during summation should be treated:
Regardless of what counsel said or I may have said recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts. Arguments, statements, remarks, openings, and summations of counsel are not evidence and must not be treated as evidence.
Although the attorneys may point out what they think important in this case, you must rely upon your understanding and recollection of the evidence that was admitted during the trial.
Whether or not the defendant has been proven guilty beyond a reasonable doubt is for you to determine based on all of the evidence presented during the trial. Any comments by counsel are not controlling. It is your sworn duty to arrive at a just conclusion after considering all of the evidence which was presented during the course of the trial.
Juries are presumed to understand and follow instructions. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); see also State v. Muhammad, 145 N.J. 23, 52 (1996) ("While there is no way to assure that a jury adheres scrupulously to the mandate of a limiting instruction, there is no reason to believe that jurors will not act responsibly in performing their duty."). Given the context of the comments and the jury instructions provided relative to the comments, we hold there was no error in the prosecutor's summation, much less plain error, which would undermine our confidence in the outcome. See Macon, supra, 57 N.J. at 336.
Finally, we turn to defendant's contention, agreed to by the State, that the judge erred when he (1) sentenced defendant in a second-degree range on the conviction for endangering the welfare of a child; (2) failed to merge the third-degree conviction with counts two and three; (3) improperly imposed fines under the Sex Crimes Victim Treatment Fund (SCVTF); and (4) improperly imposed an additional $30 monthly parole supervision fee.
Defendant was convicted for third-degree endangering the welfare of a child, and thus was improperly sentenced in the second-degree range. Moreover, because defendant's convictions on counts three and four share common elements and rested on identical proofs, they should have been merged for sentencing purposes. See, e.g., State v. Clark, 324 N.J. Super. 178, 192 (App. Div. 1999) ("The endangering the welfare of a child convictions should have merged with the sexual assault convictions because 'the record suggests no basis for the endangering conviction[s] beyond the sexual assault[s].'") (quoting State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992)), rev'd on other grounds, 162 N.J. 201 (2000).
With respect to the fines imposed under the SCVTF, because the third-degree endangering conviction on count four should have merged with the second-degree sexual assault conviction for count three, it did not require the imposition of a $1,000 fine. The maximum fine should have been $1,500. See N.J.S.A. 2C:14-10 (providing that the SCVTF fine may not exceed $1,000 for a second-degree offense, and $500 for a fourth-degree offense). We also note that the judge did not provide a statement of reasons for his assessment of the penalties in accordance with N.J.S.A. 2C:14-10. See also State v. Bolvito, 217 N.J. 221, 235 (2014).
As for the parole supervision fee under the newly enacted N.J.S.A. 30:4-123.97, defendant and the State both argue that the fee is barred by the ex post facto clauses of the federal and state constitutions, U.S. Const. art. I, § 10 and N.J. Const. art. IV, § 7, ¶ 3.
Under an ex post facto analysis, if the Legislature had a punitive intent in enacting the statute, "'that ends the inquiry.'" Riley v. New Jersey State Parole Bd., 219 N.J. 270, 285 (2014) (quoting Smith v. Doe, 538 U.S. 84, 89, 123 S. Ct. 1140, 1145, 155 L. Ed. 2d 164, 174 (2003)). This court has rejected ex post facto imposition of fines arising out of criminal convictions. See e.g., State v. Dela Rosa, 327 N.J. Super. 295, 303 (App. Div.) (rejecting retroactive assessment of increased Victims of Crime Compensation Board fines as barred by ex post facto clauses) (citing State v. Chapman, 187 N.J. Super. 474, 477 (App. Div. 1982) ("The application of the mandatory penalty provisions of the new Code was unquestionably barred by the prohibition of ex post facto legislation found in both the Federal and State Constitutions.")), certif. denied, 164 N.J. 191 (2000); State v. Adams, 320 N.J. Super. 360, 370-71 (App. Div.) ("[T]he [Safe Neighborhood Services Fund (SNSF)] assessment ordered, . . . was improper because the date of the offense, . . . preceded the date when the statute authorizing the SNSF became effective, . . . . Because retroactive application of criminal penalties is not permitted, the SNSF assessment was without a foundation in law.") (citing State v. J.F., 262 N.J. Super. 539, 542 (App. Div. 1993)), certif. denied, 161 N.J. 333 (1999); cf. Riley, supra, 219 N.J. at 288, 298 ("Community supervision for life and its corollary parole supervision for life are merely indefinite forms of parole. We have ruled that community supervision for life 'is punitive rather than remedial.'") (quoting State v. Schubert, 212 N.J. 295, 308 (2012)).
Defendant was convicted for crimes which took place prior to the effective date of the statute, July 1, 2014. See L. 2013, c. 214, §7. The statute evinces a punitive intent because it contemplates a "penalty" and flows from a criminal conviction. N.J.S.A. 30:4-123.97. Therefore, retroactive imposition of N.J.S.A. 30:4-123.97 violates the ex post facto clauses of the federal and state constitutions.
For the foregoing reasons, we affirm defendant's conviction. We remand for resentencing consistent with this opinion. We do not retain jurisdiction.
Affirmed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION