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State v. B.M.

January 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
B.M.*FN1 , DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-10-1392.

The opinion of the court was delivered by: Coleman, R. B., J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 19, 2007

Before Judges Parker, R. B. Coleman and Lyons.

On leave granted, the State appeals from an interlocutory order determining evidentiary issues relating to allegations of sexual abuse. Proceedings in the Law Division were stayed pending appeal. After hearings conducted on March 20 and 22, 2007, in the Law Division, Passaic County, the court issued an order granting the motion of defendant B.M. (a) to admit during cross-examination evidence that the ten-year-old complainant, T.F., had also made accusations of sexual abuse against three of her cousins, Q.M., J.H. and S.F., and (b) to exclude rebuttal evidence that the three cousins, all juveniles, had entered guilty pleas to sexual offenses charged as a result of T.F.'s accusations. The order also memorialized the court's intention to instruct the jurors that "Q.M., J.H. and S.F. may or may not have been charged, prosecuted or adjudicated [and that] shall not enter into [the] deliberations."

We affirm the court's determination to permit defendant to elicit on cross-examination that T.F. had also accused others of sexual assault, but we reverse and remand for further consideration the decision to exclude rebuttal evidence by the State concerning the guilty pleas of the other alleged assailants in the event defendant opens the door by his cross-examination. We agree that a limiting instruction probably will be necessary if these areas of inquiry are explored, but that instruction must be fashioned in light of the nature of the proofs actually allowed.

Defendant B.M., at age seventeen, was initially charged as a juvenile in a complaint in the Chancery Division, Family Part, Passaic County, alleging conduct which, if committed by an adult, would constitute first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one), and second degree sexual assault, N.J.S.A. 2C:14-2b (count two). On April 25, 2005, an order was entered in the Family Part waiving its jurisdiction over defendant and referring the matter for further proceedings in the Law Division, Criminal Part.

The facts relevant to our review of the evidentiary rulings in the Law Division are not in dispute. In November 2004, the victim, T.F., disclosed to her mother that four of T.F.'s cousins had committed sexual acts upon her between July 2003 and July 2004. There is no indication of concerted or collaborative conduct by any of the actors. Each of the acts was alleged to have occurred separately and independently of the others. In a videotaped interview conducted by a child interview specialist within the prosecutor's office, T.F. alleged that three of the cousins had initiated vaginal intercourse with her and the fourth cousin had pursued anal intercourse. Her general description of the events was similar. She claimed that on each occasion, the actor pulled down his pants and then removed her pants. She never saw the private parts of the actors, but each actor achieved penetration.

Q.M., J.H. and S.F. entered guilty pleas to charges in juvenile court; however, defendant B.M. filed a pretrial motion in the Law Division, seeking to admit evidence that the victim had made accusations against three other persons and to exclude any reference to the dispositions of those accusations. The State took the position that the Rape Shield Statute, N.J.S.A. 2C:14-7, should bar any reference to the victim's prior sexual conduct, and hence, the jurors should not learn of any other accusations T.F. may have made against other sexual abusers. In the alternative, the State argued that if evidence of the other sexual assaults was to be admitted, then, evidence of the disposition of the charges also should be admitted, to give the complete picture.

The court granted defendant's motion, reasoning as follows:

[T]his is a statutory sex assault, so there's no issue of consent here. But because all these -- all these incidents occurred within a short period of time from each other and because the descriptions are similar in the way they occurred, I think it would be a violation of the Defendant's right of confrontation if I didn't let him raise those issues. That these incidents occurred at the same period of time.

It's almost as though, as far as like a prior act, they're almost not prior acts, they're contemporaneous, when you look at the period of time where these three cousins or four cousins, I'm sorry were sexually --allegedly sexually assaulting [the victim.]

So I'm going to permit it.

When the assistant prosecutor sought clarification at a hearing two days later, the court reiterated its ruling by stating Well, the way I view this, the reason that I ruled the way I ruled, . . . is this, that this really, to me when I look at it, it's victimization by -- alleged victimization by a group of cousins, four of them, during a period of time. It's not an extended period of time. Correct me if I'm wrong, it's about a year, it looked like.

That's number one. So it's all kind of the same course of conduct by this group.

Number two, there are a lot of similarities in the description that she gives of the sexual assaults. That is she's usually asleep someplace, in a bedroom or somewhere. Someone walks in, draws down her pants, gets on top of her and ...


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