Opinion
DOCKET NO. A-3375-12T1
11-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. V.G., Defendant-Appellant.
Ron Bar-Nadav, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0302. Ron Bar-Nadav, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was charged in a five-count indictment with various sexual offenses committed against K.C., the younger sister of the mother of his child. The offenses against K.C. were alleged to have occurred between January 1, 2010, and August 31, 2010, when K.C. was about eleven-years-old.
Defendant was charged with four counts of second-degree sexual assault on a minor less than thirteen years of age, N.J.S.A. 2C:14-2(b) (counts one through four), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count five).
We utilize initials for the victim, defendant, and family friend, and a pseudonym (Nancy) for K.C.'s sister, to protect the parties' privacy.
A jury acquitted defendant of count one, and convicted him of the remaining counts. On February 8, 2013, defendant was sentenced on count two to six years of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on count four to a consecutive six years of imprisonment, subject to NERA. On count three, defendant was sentenced to a concurrent six-year term of imprisonment, subject to NERA, and on count five (third-degree child endangerment) defendant was sentenced to a concurrent six-year term of imprisonment. In addition, defendant was ordered to register as a sex offender under Megan's Law and to parole supervision for life. Also, mandatory assessments and penalties were imposed.
On appeal, defendant presents the following arguments:
POINT I
THE COURT ERRED IN PERMITTING THE STATE'S "FRESH COMPLAINT" WITNESS [S.B.] TO TESTIFY WELL BEYOND THE SCOPE OF THE RULE BY ALLOWING HER TO DISCUSS THE FAMILY'S REACTION TO THE ALLEGATIONS OF SEXUAL
ASSAULT AS WELL AS DISCUSS THE [DEFENDANT'S] DEMEANOR UPON SEEING HER WITH K.C. IN THE FAMILY'S APARTMENT.
POINT II
DEFENSE COUNSEL'S FAILURE TO CALL ANY WITNESSES TO SUPPORT [DEFENDANT'S] THEORY OF POSSIBLE COLLUSION CONCERNING THE ALLEGED VICTIM AND HER OLDER SISTER WAS A CLEAR ERROR IN JUDGMENT AND CONSTITUTED "INEFFECTIVE ASSISTANCE" WHICH REQUIRES REVERSAL OF HIS CONVICTION.
POINT III
THE COURT ERRED IN ALLOWING THE PROSECUTOR TO OFFER ADDITIONAL PREJUDICIAL HEARSAY STATEMENTS DURING HER SUMMATION CLAIMING THAT BECAUSE [DEFENDANT] WAS UNABLE TO BE WITH HIS GIRLFRIEND (THE VICTIM'S OLDER SISTER), THIS LED TO HIM SEXUALLY ASSAULTING K.C.
We reject these arguments and affirm defendant's conviction. However, we remand the matter for amendment of the judgment of conviction to correct an error in his sentence for a third-degree crime.
The following facts are derived from the trial record. Defendant and K.C.'s older sister, Nancy, were in a dating relationship during much of the relevant time period. In March 2010, defendant moved into K.C.'s home in Lodi because Nancy was pregnant with their child. Defendant was about nineteen-years-old at the time, while K.C. was about eleven. Around that time, K.C. said that defendant began acting differently and started "touching [K.C.'s] butt" and "kissing [K.C.]." This gradually-progressed and defendant "started touching [K.C.'s] vagina, [K.C.'s] breasts and he started doing it more frequently." According to K.C., defendant also started acting more forcefully. At trial, she described one specific incident in which defendant put his hands inside K.C.'s shirt and under her bra and began forcibly kissing her lips and breasts. K.C. also testified that defendant: touched her breasts with his hands two or three times; touched her breasts with his mouth once; and touched her vagina four or five times. In addition, K.C. testified that defendant forced her to grab his erect penis. Despite her attempts to resist, defendant grabbed K.C.'s hand and "[m]ove[d] it up and down" over his penis for two minutes. Defendant further asked K.C. to "kiss his penis." K.C. also described an incident in which defendant attempted to lie on top of her and touch his penis on her butt.
K.C. specifically recalled an incident in June 2010 in which K.C., defendant, and five other members of the family were driving their van home from an amusement park. K.C. and defendant were sitting in the third row together, and K.C. asked to borrow defendant's cell phone so that she could text defendant's brother. Defendant responded that he would only give K.C. his phone if she touched his penis. Furthermore, defendant threatened K.C. that he would tell her parents about K.C. wanting to text his brother if she did not touch his penis, so she touched it for a few seconds.
K.C. eventually informed her sister that defendant had been touching, kissing, and abusing her, and K.C.'s sister reached out to a family friend, S.B., in October 2010. S.B. is a Colombian-born health assistant who formerly worked as a clinical psychologist in Colombia. Soon thereafter, K.C. privately met with S.B., who testified that K.C. said "she was having difficulties with [defendant] . . . the boyfriend of her sister, [Nancy]. And she told me that for a few months he had been touching her incorrectly . . . [t]hat he was touching her on her private parts . . . [b]reasts, butt, vagina." She informed S.B that these incidents had been occurring for approximately eight months. In addition, K.C. informed S.B. that she had not told her parents because defendant was blackmailing her by saying he would tell her parents that K.C. had a crush on defendant's brother and that they had kissed. S.B. told K.C. that it was necessary that she tell her parents so that they could report the incident to the police.
Following this meeting, S.B. returned with K.C. to K.C.'s home and informed her parents of the situation. According to S.B., she did all of the talking because K.C. was "very nervous and . . . afraid to talk to her parents." At some point during this meeting, defendant arrived at K.C.'s home to pick up his and Nancy's child. S.B. described defendant's demeanor when he arrived as "[n]ervous . . . quite hurried and upset."
K.C.'s parents contacted the Lodi Police Department and the case was referred to the Bergen County Prosecutor's Office. Detective George Santiago of the prosecutor's Special Victims Unit handled this case. Detective Santiago conducted a forensic interview of K.C. on October 18, 2010. The interview was videotaped in its entirety and played for the jury at trial. K.C. identified the parts of her body that defendant touched, as well as indicated where on defendant she was forced to touch.
Defendant was tried before a jury from September 18 to 25, 2012. The State presented testimony from Detective Santiago, S.B., K.C., and a clinical psychologist. The defense did not call any witnesses nor did defendant testify. Rather, defense counsel advanced a theory that K.C.'s older sister had coerced K.C. into fabricating these incidents in order to keep defendant away from their baby. Then, with defendant out of the picture, she would have full custody over the child, and would be free to take the child back to Colombia or wherever else she pleased. By its verdict, the jury rejected this theory, finding defendant guilty of three counts of second-degree sexual assault and one count of third-degree endangering the welfare of a minor.
I
Defendant first argues that the testimony of the State's "fresh complaint" witness, S.B., went beyond the scope of what should have been permitted. Defendant specifically asserts that S.B. "initially advised the jury that she met with K.C. at the request of K.C.'s older sister [Nancy]" and that she "informed the jurors that it was her understanding that K.C. was having a problem with [defendant]." As summarized in defendant's brief, S.B. testified that "she believed that [defendant] was blackmailing [K.C.] based on feelings that she had for [defendant's] older brother." Additionally, S.B. testified that "she took K.C. to tell her parents about what had allegedly happened, and that her family reacted badly to the news," and further that "when the [defendant] came to the apartment to see his newborn son he appeared nervous, upset and in a rush to leave when he saw K.C. with the witness and her parents." Defendant further argues that the court's instruction regarding the use of "fresh complaint" evidence was insufficient to undo the prior harm caused to defendant's case.
The trial court previously ruled that S.B.'s testimony was admissible as fresh complaint testimony:
In this case, the court is satisfied that the statements made by K.C. to her sister [Nancy], disclosing the alleged sexual abuse qualify for admission pursuant to Fresh Complaint Theory 2. K.C.'s older sister is clearly a person who would be a natural confidante to disclose these alleged incidents. Moreover, notwithstanding that K.C. sought out [S.B.] at the suggestion of her sister, and was taken by her sister to meet with [S.B.], the court finds that the disclosure to [S.B.] also qualifies for admission pursuant to Fresh Complaint Theory 2. The close relationship between [S.B.] and K.C.'s family, as well as [S.B.'s] professional training as a forensic psychologist, also make her a natural confidante to K.C.
Technically, there are three "fresh complaint" concepts. "Fresh Complaint Theory 1" is the typical "excited utterance." "Fresh Complaint Theory 3" admits a statement to rehabilitate the alleged victim after that person's testimony has been impeached at trial. State v. Hintenberger, 41 N.J. Super. 597, 604 (App. Div.), certif. denied, 23 N.J. 57 (1956). This case concerns "Fresh Complaint Theory 2," the separate, but related concept of statements by the victim of a sexual assault to someone to whom the victim would ordinarily turn for support. State v. Bethune, 121 N.J. 137, 148-49 (1990).
The fresh complaint rule was established "to allow the State to meet in advance the negative inference which would be drawn from the absence of evidence that the [child] victim reported the [sexual abuse] to one to whom she would naturally turn for comfort and advice." State v. J.S., 222 N.J. Super. 247, 256 (App. Div.), certif. denied. 111 N.J. 588 (1988) (citation omitted). Our Supreme Court has described fresh complaint evidence as follows:
[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.Fresh complaints may also be admissible when "made in response to general, or non-coercive, questioning," with greater latitude shown in cases dealing with young children. Id. at 167, 170. It is left to the trial court "to examine all the circumstances of the questioning to determine whether the line between coercive and benign questioning has been crossed." Id. at 170. Similarly, "the trial court in its discretion may, but need not, exclude cumulative fresh-complaint testimony that is prejudicial to defendant." Ibid.
[State v. Hill, 121 N.J. 150, 163 (1990) (citations omitted).]
Although fresh complaint evidence serves a narrow purpose, and should not be considered as substantive evidence of guilt or as bolstering the credibility of the victim, State v. R.K., 220 N.J. 444, 456 (2015) (citing Bethune, supra, 121 N.J. at 147-48), a review of the record reveals that the judge did not indicate that S.B.'s testimony was substantive evidence of defendant's abuse. Rather, the judge properly instructed the jury that "the testimony was permitted for a limited purpose . . . . Proof that a complaint was made, is neither proof that the sexual offense occurred, nor proof that K.C. was truthful. It merely dispels any negative inference that might arise from her assumed silence."
Defendant cites J.S., supra, 222 N.J. Super. at 247, to support the argument that "[b]y permitting [S.B.] to discuss the family's reaction to the news of the 'Complaint' as well as allowing her to describe the [defendant's] demeanor upon seeing . . . [S.B.] with K.C. and her family in the apartment, this particular testimony qualifies as excessive, damaging and unnecessary details . . . ." In J.S., this court held that a mother's testimony regarding her daughter's sexual abuse was inadmissible under the "fresh complaint" rule. In that case, the child's mother testified that, when approached about the subject, the child cried and refused to talk about it. Id. at 253. In order to solicit answers, the mother specifically asked the child if the defendant had touched or penetrated different parts of her body, to which the child responded with exclusively "yes" or "no" answers. Ibid. This court noted:
While the methods employed by Mrs. M. to find out what had happened to her daughter
were certainly understandable, our concern is whether the child's out-of-court responses satisfy the exacting standards for admissibility under a rule of evidence which permits such testimony only to demonstrate that the victim made a "complaint" . . . . In our view, to qualify as a complaint the victim's statement must at least be self-motivated and not extracted by interrogation.
[Ibid.]
However, defendant's reliance on J.S. is misplaced. While "details of the offense should be confined to those minimally necessary to identify the subject matter of the victim's complaint," Id. at 257, nothing in J.S. limits the fresh complaint witness to testify exclusively to the victim's disclosures.
Furthermore, defendant's allegation that the testimony consisted of "excessive details" which became "highly inflammatory and unduly prejudicial" also lacks merit. First, the record reveals that the testimony consisted of only enough details of the sexual offense to identify the nature of the complaint. This hardly rises to the level of prejudicial details in State v. J.S., in which "the adults' testimony that [the child victim] told them defendant had penetrated her vagina imported highly provocative details which were nowhere supported by competent evidence elsewhere in the record." J.S., supra, 222 N.J. Super. at 254.
With respect to S.B.'s testimony that K.C. was "nervous" during her disclosure and that defendant was "nervous" and "upset" upon entering K.C.'s house, defendant's arguments again lack merit. S.B.'s first-hand observations and descriptions of the demeanors of both individuals were relevant and based upon personal knowledge, and hardly amount to "excessive details" that would necessitate a new trial.
II
Defendant next argues that — among "several prejudicial errors committed by [defendant's] counsel" — the most egregious was defense counsel's "completely improper decision to not offer any witnesses in furtherance of his theory that the (child) victim and her older sister [Nancy] had conspired to bring these heinous charges against [defendant]."
To prevail on a claim of ineffective assistance of counsel, defendant must establish: (1) "that counsel's performance was deficient"; and (2) that "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984)).
We decline to consider defendant's claim of ineffective assistance of counsel. Defendant's argument rests on facts outside the appellate record because it depends on the testimony of "potential" witnesses who did not testify at trial. The trial record is therefore inadequate to resolve the question of whether defendant's trial counsel was constitutionally ineffective under the standards adopted in Fritz. Id. at 49-53. Defendant may, if he chooses, pursue the claim in a timely-filed petition for post-conviction relief.
III
In challenging his conviction, defendant's final argument is that the prosecutor's summation consisted of "prejudicial hearsay" by "stat[ing] that because [defendant] missed the touch of a woman and his pregnant girlfriend (the victim's older sister) could not engage in sexual relations with him at that time, this may have provided incentive in causing him to assault the victim." Defendant bases this claim upon the following argument made in the prosecutor's summation:
I told you at the beginning of this case that [defendant] began to touch [K.C.] when [Nancy] was in her last trimester of pregnancy; right? Because she gave birth April 16; right?
The child says it started in March . . . . That is the time period when presumably there would [be] little to no sexual
intercourse going on between him and his girlfriend, right?
. . . .
These comments refer to K.C.'s statement from her forensic interview with Detective Santiago. The statement was admitted into evidence without objection.
How do you know that's true, members of the jury? Because [K.C.] tells you so. Page 10 of her statement, which you will get, I know you can't read this, I understand. But page 10, which you will get, question from Detective Santiago, okay, and what did he tell you, and what was the reason he was touching you like that? Answer, uh, well he would tell me that, that he for a while had not been with a woman. Question, uh huh. And that he missed the body of a woman.
Defendant's argument lacks merit as it ignores the fact that defendant's statement that he "missed the body of a woman" was properly admitted as a statement by a party-opponent, N.J.R.E. 803(b)(1). "As long as there are no [Bruton], [Miranda], privilege or voluntariness problems, and subject to [N.J.R.E.] 104(c), the State may generally introduce at a criminal trial any relevant statement made by the defendant . . . whether [or not] the defendant testifies." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(b)(1) (2015). Accordingly, the hearsay issues to which defendant refers in his brief are without merit.
Defendant further argues that this statement "was not a highlighted point and was never emphasized by the prosecutor as a major underlying reason for why [defendant] would have allegedly been driven to sexually assault K.C." As the State correctly points out, whether or not the issue of defendant's motive was a highlighted point in the State's case-in-chief is immaterial. Our Supreme Court has held that "while a prosecutor's summation is not without bounds . . . the [p]rosecutor is entitled to wide latitude in his [or her] summation." State v. R.B., 183 N.J. 308, 330 (2005) (quoting 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)). Accordingly, a prosecutor may comment "on the facts shown by or reasonably to be inferred from the evidence." Ibid. (citation and internal quotation marks omitted). Here, the challenged argument was based on evidence properly submitted to the jury. The fact that the prosecutor did not emphasize defendant's motive during the State's case-in-chief is of no consequence.
IV
In its brief, the State acknowledges that part of defendant's sentence is illegal, and therefore requests a remand to permit an appropriate amendment of the judgment of conviction. Specifically, the State notes that the sentence on count five is illegal, as defendant was convicted of third-degree endangering for which there is a maximum prison sentence of five years.
Because the State did not file a cross-appeal and defendant's conviction was entered more than two years ago, we decline to entertain the State's arguments concerning the assessments and penalties imposed by the trial court. --------
Affirmed as to defendant's convictions, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION