On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-11-2143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Payne, and Lihotz.
Defendant, Terry W. Coder, appeals from his convictions on four counts of a ten-count indictment charging sexual offenses against two children, J.B. and S.F., ages three and eleven, respectively. The indictment, returned on August 8, 2001, charged defendant as follows: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count two); second-degree sexual assault with a minor, at least four years his junior, N.J.S.A. 2C:14-2(b) (count three); second-degree attempt to commit aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count four); second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count five); second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count six); third-degree attempt to lure or entice a child, N.J.S.A. 2C:13-6 (count seven); fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1) (count eight); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count nine); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten).
Following a jury trial in April 2003, defendant was found guilty on counts three, six, eight and ten, and not guilty on counts one, four and seven. Counts two, five and nine were dismissed by the State at the outset of the trial.
On July 18, 2003, defendant was sentenced to a seven-year prison term on count three, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a concurrent seven-year term on count six, a concurrent eighteen-month term on count eight, and a consecutive four-year term on count ten. Thus, defendant's aggregate sentence is eleven years with seventy-one months to be served without parole. Appropriate penalties and assessments were also imposed.
On appeal, defendant presents the following arguments for our consideration:
THE STATE'S RELIANCE ON THE OUT-OF-COURT STATEMENT OF AN ABSENTEE WITNESS/ALLEGED VICTIM TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).
A. THE STATE UNCONSTITUTIONALLY INTRODUCED INTO EVIDENCE THE OUT-OF-COURT HEARSAY ACCUSATIONS OF ONE OF THE ALLEGED VICTIMS WHO DID NOT TESTIFY AT THE TRIAL (Not Raised Below).
B. THE STATE FAILED TO SHOW THAT THE CRITERIA FOR THE ADMISSIBILITY OF THE CHILD'S OUT-OF-COURT STATEMENT HAD BEEN SATISFIED.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, USING THE TACTIC OF CHARACTER ASSASSINATION TO PROVE HER CASE (Partially Raised Below).
THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT S.F. AND J.B. WERE VICTIMS, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK CHARGE) (Not Raised Below).
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
THE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD MERGES WITH THE CONVICTION FOR SEXUAL ASSAULT (Not Raised Below).
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
C. THE TRIAL COURT MADE FINDINGS OF FACT INCONSISTENT WITH JURY FINDINGS TO IMPOSE AN EXCESSIVE SENTENCE.
We conclude that the arguments presented in Points II, III, IV, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's Point I, however, does merit discussion, and requires that we set out the facts in some detail. We also address Points VI and VII.
The jury could have found the following from the State's evidence at trial. Eleven-year-old S.F. spent a lot of time with her grandmother, who lived in Long Branch, during August 2001. She would often play with J.B., the three-year-old daughter of her grandmother's neighbor, D.B. Defendant was the superintendent of the apartment complex where the grandmother of S.F. lived. Defendant was known to children in the area, including S.F., because "he used to play around with all of the kids there because he had a train set in the house."
On August 21, 2001, defendant asked S.F. if she would like to visit his apartment to see the train set that he kept there. S.F. had been there on a prior occasion with D.B.'s son to play on the computer. After obtaining her grandmother's permission, S.F. went by herself to defendant's apartment. Once there, she went to view the train set, which was located in a corner of the bedroom and was situated in such a way that it was possible to stand in the middle of it, which S.F. did.
While S.F. was viewing the train set, defendant produced two pornographic magazines from the closet. Defendant attempted to show the magazines, which depicted nude males and females, to S.F. by putting them in front of her face. S.F. told defendant that she did not want to look at them.
After she had finished playing with the train set, S.F. went to the kitchen to tell defendant that she was leaving. As she was leaving, defendant gave her a bag that contained Christmas candy, about nineteen dollars in quarters, and a game. Defendant also told S.F. that if she told anybody, then "something would happen." S.F. did not tell anyone about the incident afterwards because she was "scared that something would happen." She had been in the apartment about forty-five minutes.
On August 28, 2001, S.F. was sitting on the front porch of her grandmother's house with J.B. as the two played. Defendant approached and asked them if they would like to see different colored pieces of wood that were in the basement of the building. The two girls then followed defendant into the basement. When the girls got to the basement, S.F. turned the lights on, but defendant then turned them back off.
After turning off the lights, defendant undid his belt and pulled down his pants. Although the overhead lights were out, ambient light allowed S.F. to see what defendant was doing and also allowed S.F. and J.B. to see the front and back of defendant. J.B. was standing next to S.F. when defendant pulled his pants down. Defendant then walked over to J.B. and pulled down her pants and underwear. When defendant tried to pull up S.F.'s skirt, she slapped his hand away. Defendant did not touch S.F. again, but she saw him rub both his hands on J.B.'s backside while her pants were down. According to S.F., J.B. looked scared and had her head down. While this was occurring, defendant shook his backside in view of the girls.
S.F. took J.B.'s hand and tried to leave the basement but defendant took hold of J.B.'s other hand to prevent her from leaving, creating a tug-of-war situation. S.F. told defendant that she had to use the bathroom and ran out of the basement.
Once out of the basement, S.F. ran straight to the apartment of D.B., J.B.'s mother, and told her what happened and that J.B. was still in the basement. D.B. stated that S.F. looked panicky and frightened when she spoke to her. As D.B. was leaving her apartment to locate J.B., she saw a frightened-looking J.B. climbing the steps to their apartment. D.B. took hold of J.B., took her inside and then examined J.B.'s vagina and buttocks for bleeding, redness or any other signs of abuse. D.B. did not locate any physical injuries. When D.B. asked J.B. if anything hurt, J.B. responded by pointing to her vagina and buttocks and said "it hurts."
S.F. called her mother, T.B., who immediately left work to join her at the apartment complex. Then, D.B. called the police, who arrived within one-half hour of the call. S.F., T.B., J.B. and D.B. then left the apartment to speak with the police outside. After T.B. and S.F. had left, but before D.B. and J.B. left, J.B. said, "Mommy, he touched me" and she pointed to her vagina and buttocks.
As they were speaking with the police, defendant returned to the complex and D.B. pointed him out to the police. The officers then approached defendant and told him of the allegations against him and asked him to accompany them to the police station.
At the police station, Detective Mazza advised defendant of the allegations, and then read defendant his Miranda*fn1 warnings. Defendant acknowledged the Miranda warnings by initialing next to each as set out on the waiver form and by signing the form.
Following attempts to have defendant give a timeline of events, officers asked him to handwrite a statement of everything that he had done that day. Mazza then used this document to ask follow-up questions. In his statement, defendant said that while in the basement, the older girl had been asking numerous sexual questions, such as whether he had ever had sex. He also stated that the older one lifted up the dress of the younger one and said, "this is what I look like," to which defendant responded, "what do you want me [to do], show you mine and you'll show me yours[?]" Defendant then opened his pants to the older girl in order to scare her and to make her leave.
Following this, defendant then gave a formal written statement in a question and answer format that was dictated and typed. Defendant stated substantially the same version of events and again denied touching either S.F. or J.B., ...