Opinion
DOCKET NO. A-1021-10T1
05-04-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY POWELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, 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NOT FOR PUBLICATION WITHOUT THE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 Cuff and Waugh.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-1441.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Defendant Gregory Powell appeals his conviction for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), as well as the resulting aggregate sentence of incarceration for eight years with an eighty-five-percent period of parole ineligibility. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
On July 14, 2006, the twelve-year-old victim, to whom we refer by the pseudonym Rachel, was visiting two cousins and her aunt at their home in Franklin Township. Rachel asked to spend the night with her cousins, and was allowed to do so.
The aunt's boyfriend, John, was also at the house in Franklin. Powell, who shared a residence with John and two other men in Sayreville, came to the house in Franklin at approximately 2 a.m. on July 15 because John had arranged to give him a ride home to Sayreville.
John eventually brought Rachel, the two cousins, their mother, and Powell to Sayreville. The three girls went to sleep on a mattress in the dining room. John and the aunt slept in one bedroom, while the other two roommates occupied the second bedroom. Powell slept on a sofa in the living room.
According to Rachel, she was subsequently awoken when Powell began touching the "inside" of her "privates" by putting his hand under her shorts. When Powell refused to stop, Rachel called her aunt. Powell returned to the sofa. John, who had been in the bathroom, responded to Rachel's shouts, as did her aunt who had been in the bedroom. Rachel told them that Powell touched her in her "private."
Powell was indicted on September 29, 2006. The indictment charged Powell with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a), in addition to the two offenses on which he was found guilty. The trial took place on three days in March 2008. The jury acquitted Powell of the first-degree offense, but found him guilty of second-degree sexual assault and third-degree endangering.
The trial judge imposed an eight-year term for sexual assault and a concurrent five-year term for endangering, both subject to an eighty-five-percent period of parole ineligibility. This appeal followed.
II.
On appeal, Powell raises the following arguments:
POINT I: THE COURT ERRED IN PERMITTING FRESH COMPLAINT TESTIMONY IS THIS CASE. ALTERNATIVELY, THE COURT ERRED IN PERMITTING THE INTRODUCTION OF EXCESSIVE DETAILS IN THE FRESH COMPLAINT TESTIMONY OF JOHN. (Not Raised Below).We address each point separately.
POINT II: BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. POWELL COMMITTED AN ACT OF SEXUAL CONTACT, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL OF ALL OF THE OFFENSES CHARGED. MOREOVER, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially Raised Below).
POINT III: THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. U.S. CONST., AMENDS V, XIV; N.J. CONST. (1947), ART. 1, ¶ 10. (Not Raised Below).
POINT IV: THE SENTENCE OF EIGHT YEARS' IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
A.
Although he did not object to John's testimony at trial, Powell now contends that the trial judge erred in permitting John to give fresh-complaint evidence because the alleged crime was reported and investigated within a relatively short period of time, obviating the need for such evidence. In the alternative, he argues that the fresh-complaint evidence was excessive in scope, inappropriately going beyond the mere fact of a complaint.
Because the issue is being raised for the first time on appeal, we apply the plain error standard of appellate review. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
In order to qualify as fresh-complaint evidence, "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." State v. Hill, 121 N.J. 150, 163 (1990) (citations omitted). The "evidence serves a narrow purpose." Ibid. It is admissible to prove the particular time at which the victim complained, State v. W.B., 205 N.J. 588, 616-17 (2011) (citations omitted), to "allow[] the State to negate the inference that the victim was not sexually assaulted because of her silence," Hill, supra, 121 N.J. at 157 (citations omitted). It is not admissible, however, "'to corroborate the victim's allegations concerning the crime.'" W.B., supra, 205 N.J. at 616-17 (quoting State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006)).
Accordingly, the fact of the complaint is admissible, but extensive details are not. In other words, a fresh complaint witness may testify regarding "the general nature of the [victim's] complaint" without providing "unnecessary details of what happened." Id. at 617 (citations omitted). The determination whether to admit fresh-complaint evidence is committed to the trial judge's sound discretion. State v. L.P., 352 N.J. Super. 369, 380 (App. Div.) (citing Hill, supra, 121 N.J. at 167-68), certif. denied, 174 N.J. 546 (2002).
Before addressing this issue in detail, we pause to put it in perspective. In the circumstances of this case, the difference between first-degree sexual assault and second-degree sexual assault turned on whether there was vaginal penetration, which is required by N.J.S.A. 2C:14-2(a) but not N.J.S.A. 2C:14-2(b). The latter offense requires only sexual contact.
In his opening statement, defense counsel focused on the fact that Rachel did not allege actual penetration during her examination at Robert Wood Johnson Hospital. He asserted that the State's case for penetration hinged on Rachel's evidence, saying: "Other than her word where is the rest of the evidence in this case."
It was in that context that the State sought to develop fresh-complaint evidence. Given the defense opening and the lack of objection by defense counsel, we see no plain error in the trial judge's failure to exclude that evidence sua sponte. Although the prosecutor may have delved into more detail than appropriate under W.B., supra, 205 N.J. at 616-17, it is clear that the prosecutor was attempting to demonstrate that there was fresh complaint of penetration.
Viewed as a whole, we conclude that John's testimony was actually more helpful than harmful to Powell, because it helped to underscore Rachel's conflicting statements concerning whether there had actually been penetration. John's initial testimony was that Rachel told him that Powell had touched her legs. When asked "[a]nywhere else," he responded "[t]hat's all she said." He then testified that Rachel said that Powell was "trying to go into her pants," but could not recall whether she said he had done so. It was only after his memory was refreshed that he agreed that Rachel had told him Powell had "touched inside of her pants." When questioned further on redirect, John agreed that Rachel had said that Powell "touched her private parts." On cross defense counsel developed that John had told one investigator that Rachel did not say that. Of particular importance, however, is the fact that John never corroborated an assertion of penetration. The jury subsequently acquitted Powell of the charge requiring a finding of penetration.
Although parts of John's testimony provided support for the occurrence of sexual contact, the stronger evidence on that issue came from the nurse who examined Rachel during the investigation. John's evidence was not strong and was, taken as a whole, far from persuasive. While John's testimony most likely led to the acquittal on first-degree sexual assault, we conclude that it was not decisive with respect to the conviction on the two remaining counts. For that reason, we conclude that any error on the judge's part in not barring John's testimony sua sponte was not "clearly capable of producing an unjust result." Bunch, supra, 180 N.J. at 541 (citations and internal quotation marks omitted).
B.
Powell next argues that the trial judge erred in denying his motion for acquittal at the end of the State's case. He also argues that the verdict was against the weight of the evidence.
We apply the same standard the trial judge applied in determining whether he erred in denying Powell's motion for acquittal at the end of the State's case. State v. Moffa, 42 N.J. 258, 263 (1964) (citing State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). The trial judge must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1.
More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could
find guilt of the charge beyond a reasonable doubt.
[ State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing Fiorello, supra, 36 N.J. at 90-91).]
As we have already observed, N.J.S.A. 2C:14-2(a) requires penetration and N.J.S.A. 2C:14-2(b) requires sexual contact. Penetration or sexual contact is an element of endangering the welfare of a child pursuant to N.J.S.A. 2C:24-4(a). Sexual contact is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d).
At the point the State rested, there was sufficient evidence of both penetration and sexual contact to warrant denial of Powell's motion. Rachel had testified that she was penetrated, which itself would also constitute sexual contact. Consequently, the judge appropriately denied the motion for acquittal.
We next address the issue of whether the jury's verdict was against the weight of the evidence. "An appellate court will not consider [such] an argument . . . unless the appellant moved for a new trial before the trial court on that ground." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) (citing R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974)), certif. denied, 151 N.J. 470 (1997). Powell made no such motion. "[W]e can proceed to the merits, if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.) (citing State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990); R. 2:10-2), certif. denied, 134 N.J. 476 (1993). So, for the sake of completeness, we consider the merits of Powell's argument.
Had the motion been made, it would have been governed by Rule 3:18-2. "The standard for resolving a motion brought under [that] rule is the same" as that governing a motion seeking a judgment of acquittal under Rule 3:18-1. State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011). We conduct our review de novo, applying the same standard used by the trial judge, Bunch, supra, 180 N.J. at 548-49, namely:
"whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt."
[State v. Josephs, 174 N.J. 44, 80 (2002) (quoting Reyes, supra, 50 N.J. at 459).]
We conclude that the verdict was supported by credible evidence in the record. Rachel testified that she was penetrated, but the jury apparently had some doubt that penetration actually occurred. Nevertheless, the nurse who examined Rachel at the hospital testified that Rachel told her that Powell had touched her genitals, but that he had not penetrated her. Touching the genitals, whether directly or through clothing, satisfies the element of sexual contact. N.J.S.A. 2C:14-1(d). The jury could well have determined that Powell touched Rachel's genitals without actually penetrating her vagina.
Consequently, we conclude that there was sufficient evidence for "a reasonable jury" to find Powell guilty of second-degree sexual assault and endangering.
C.
Powell next argues that his right to remain silent and not testify was improperly undermined by the jury charge. The judge based his instruction on the model jury charge in use at the time of trial. The jury heard the following instruction:
The model jury charge was amended in May 2009 to state: "[He/She] is presumed innocent whether or not he/she chooses to testify. Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (revised May 4, 2009).
As you know, the defendant elected not to testify at trial. It's his constitutional right to remain silent and you must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify.Powel argues that the use of the phrase "even if" in the last sentence suggested that he had an obligation to testify.
That fact should not enter into your determinations or your discussions in any manner at any time. The defendant is entitled to have the jury consider all the evidence presented at trial. He's presumed innocent even if he chooses not to testify.
[(Emphasis added.)]
The Supreme Court has held that the jury charge at issue, taken as a whole, has no capacity to lead jurors astray. State v. Miller, 205 N.J. 109, 127 (2011). The jurors in this case were clearly told not to consider Powell's decision not to testify. In light of Miller, we reject Powell's contention that the judge's instruction on that issue denied him a fair trial.
D.
Finally, Powell contends that his sentence was unduly excessive.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Applying our standard of review, we reject Powell's argument that the trial judge over emphasized the aggravating factors. We also reject his argument that the judge should have applied other mitigating factors. There was insufficient factual support for mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), which involves excessive hardship to family members. The fact that the crime was "opportunistic" for purposes of an Avenel evaluation does not warrant application of N.J.S.A. 2C:44-1(b)(8).
N.J.S.A. 2C:47-1 requires an evaluation of defendants convicted of certain sex offenses to determine whether they are eligible for treatment at the Adult Diagnostic and Treatment Center at Avenel.
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Consequently, we find no basis to interfere with the trial judge's exercise of his sentencing discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION