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State v. E.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E.P., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 03-06-2225-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2007

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

Tried to a jury, defendant was convicted of sexual assault, a crime of the second degree, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24-4(a). He was found not guilty of lewdness, a crime of the fourth degree, N.J.S.A. 2C:14-4(b)(1). The trial court sentenced defendant to a term of seven years in prison for sexual assault and a concurrent four years in prison for endangering the welfare of a child. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to reverse and remand for a new trial.

Defendant was tried twice. His first trial resulted in a mistrial when the jury was unable to reach a verdict. After lengthy deliberations at his second trial, the jury reached a verdict finding defendant guilty of the crimes noted.

Defendant was accused of assaulting eleven-year-old T.C. on Sunday, March 9, 2003. On Saturday, T.C. and her mother C.A. had moved into the first-floor apartment in Newark. C.A. located the apartment through the efforts of her boyfriend, J.F. J.F. was an acquaintance of defendant, who owned the building and lived in the basement apartment.

J.F. helped C.A. move into the apartment on Saturday. Defendant was on the scene and offered C.A. several chairs which he had in storage nearby. J.F. and defendant retrieved the chairs and set them up in the apartment.

T.C. testified that when she woke up on Sunday morning her mother asked her to go to the nearby store to pick up a few items for breakfast. T.C. said that when she returned, she met defendant, who asked if she could baby-sit for his younger son while he took his older son to catechism class. T.C. checked with her mother, who gave her permission. T.C. said she stayed with the younger boy, who was nine years old. He played video games and then watched a movie until defendant returned with the older boy, who was twelve. T.C. said she remained to watch the balance of the movie. She testified that defendant joined her and one of the boys on the couch. She said that while they were watching the movie, defendant took one of the pillows from the couch and put it on his lap; he then took one of her hands and slid it under the pillow and placed it on his penis and slid it back and forth a few times. She said she grabbed her hand away, without saying anything to defendant. After a short period, she returned to her apartment upstairs but did not say anything to her mother about the incident.

Later that morning C.A.'s friend E.M and her daughter P.M. came to the apartment to help C.A. and T.C. settle in. When they arrived, defendant's dog was in the apartment and T.C. was giving the dog a bath. T.C. told P.M., who was her best friend, that she had something to tell her. After some period of time, when T.C. had not told P.M. to what she was referring, P.M. asked her what she had to say. T.C. then recounted what had happened earlier that morning. P.M. at first did not believe her because she knew that T.C. sometimes made up stories.

After a period of time C.A. became concerned that the dog was hungry, and she told T.C. to go downstairs and get food for the dog, but T.C. did not want to go. C.A. told her three times to go, and E.M. also told her to go. T.C. asked P.M. to go with her, but P.M. said no. T.C. said that when she finally did go, defendant was sitting in a chair outside the door to his apartment. According to T.C., defendant had his legs spread open and his penis was exposed. She told him she had come for food for the dog, and defendant called in to the apartment, and one of the boys brought out the dog's food. T.C. returned upstairs. She did not say anything to C.A. or E.M. but told P.M. what she had seen.

Later in the day, defendant told C.A. that he was taking his sons to the movies and asked if the girls could accompany them. T.C. was reluctant to do so, but the two mothers urged the girls to go. The trip to the movies was without incident, and defendant dropped off the girls at P.M.'s apartment, as had been arranged in advance. After they arrived there, P.M. urged T.C. to tell her mother about what had occurred, but T.C. was unwilling to do so; eventually P.M. told E.M. When C.A. arrived to pick up T.C., E.M. had T.C. tell her mother.

C.A. immediately called defendant on her cell phone to berate him. When the two returned to the apartment, she confronted defendant in person.

She did not, however, call J.F. that evening to complain to him; this, she said, was because J.F. had his cell phone turned off. J.F. testified to the same effect. Defendant, however, confronted J.F. during cross-examination with his testimony in the first trial in which he said that he had his cell phone on all day and evening on Sunday.

C.A. and J.F. did talk on Monday morning, and J.F. saw defendant at lunchtime. J.F. said he asked defendant why he had behaved in such a manner and that he answered that he had had a hole in his pants and had not been aware of it.

C.A. did not contact the police until Wednesday of that week. After the police took statements from C.A., E.M., and the two girls, they arrested defendant.

Defendant did not testify at the trial, but his two sons, both of whom were in the room at the time of the alleged assault, did so. Both testified that nothing untoward happened. They said defendant never put a pillow on his lap and that the couch did not even have any loose pillows.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED BY NOT SETTING ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE, GIVEN (A) THE FATAL INCONSISTENCIES AND CONTRADICTIONS IN THE TESTIMONY OF THE STATE'S WITNESSES, AND (B) THE AMBIGUOUS VERDICT WHICH FOLLOWED LENGTHY AND SEEEMINGLY AGONIZING DELIBERATIONS BY THE JURY, AFTER AN EARLIER MISTRIAL WHERE THE JURY WAS DEADLOCKED.

A. THE NUMEROUS CONTRADICTIONS AND INCONSISTENCIES IN THE TESTIMONY OF THE STATE'S WITNESSES DEMONSTRATES THAT THERE WAS INSUFFICIENT CREDIBLE TESTIMONY TO SUPPORT A GUILTY VERDICT.

1. The Testimony of Defendant's Sons.

2. Testimony By [P.M.] that [T.C.] Was Prone to Making Up Stories.

3. Other Testimony Contradicting [T.C.'s] Version of Events.

4. The Testimony of [C.A.].

B. THE INCONSISTENT AND AMBIGUOUS VERDICT, WHICH FOLLOWED LENGTHY DELIBERATIONS AND NUMEROUS QUESTIONS BY THE JURY, AFTER AN EARLIER MISTRIAL WHERE THE JURY WAS DEADLOCKED, FURTHER DEMONSTRATES THAT THE JURORS WERE NEVER FIRMLY CONVINCED THAT THE COMPLAINING WITNESS WAS TELLING THE TRUTH AND THAT DEFENDANT WAS GUILTY.

II. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY REGARDING THE "FRESH COMPLAINT" TESTIMONY.

A. THE TRIAL COURT ERRED BY FAILING TO CONTEMPORANEOUSLY CAUTION THE JURY AS TO THE LIMITED PERMISSIBLE USES OF "FRESH COMPLAINT" EVIDENCE.

B. THE INSTRUCTION ON THE FRESH COMPLAINT TESTIMONY THAT THE COURT GAVE AT THE END OF THE CASE WAS DEFICIENT, WHERE IT CONTAINED THE WRONG MODEL CHARGE AND DID NOT CLEARLY SET FORTH THE LIMITED PERMISSIBLE USES OF THE TESTIMONY. (NOT RAISED BELOW)

1. The Court Gave the Wrong Model Charge on "Fresh Complaint."

2. The Court's Charge Did Not Clearly Instruct the Jurors on the Permissible Uses of the Fresh Complaint Testimony.

III. THE PROSECUTOR MADE IMPROPER COMMENTS IN HER SUMMATION, WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

A. IN HER SUMMATION, THE PROSECUTOR IMPROPERLY DISPARAGED DEFENSE COUNSEL AND THE JUSTICE SYSTEM ITSELF, BY TELLING THE JURORS THAT THE COMPLAINING WITNESS HAD BEEN "VICTIMIZED" AGAIN BY THE TRIAL.

B. THE PROSECUTOR REPEATEDLY REMARKED THAT THE COMPLAINING WITNESS AND HER FAMILY HAD "NO MOTIVE TO LIE." (NOT RAISED BELOW)

C. THE PROSECUTOR MADE OTHER COMMENTS DURING SUMMATION THAT WERE INFLAMMATORY AND DESIGNED TO AROUSE THE EMOTIONS OF THE JURORS INSTEAD OF FOCUSING THEM ON THE EVIDENCE. (NOT RAISED BELOW)

IV. EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES CUMULATIVE ERROR SUFFICIENT TO WARRANT REVERSAL. (NOT RAISED BELOW)

V. THE TRIAL COURT'S SENTENCING ANALYSIS WAS ERRONEOUS, RESULTING IN AN EXCESSIVE SENTENCE, WHERE (A) THE COURT MISREAD AND MISAPPLIED THE AVENEL REPORT, AND (B) THE COURT IMPROPERLY ANALYZED THE AGGRAVATING AND MITIGATING FACTORS. (NOT RAISED BELOW)

A. THE TRIAL COURT MISREAD AND MISAPPLIED THE AVENEL REPORT, BY ERRONEOUSLY FOCUSING ON ITS FINDING THAT THE OFFENSE WAS NOT THE RESULT OF A COMPULSIVE PATTERN, WHICH THE COURT WRONGLY UTILIZED AS AN "AGGRAVATING FACTOR" TO INCREASE DEFENDANT'S SENTENCE FROM THE STATUTORY MINIMUM.

B. THE COURT ERRED IN ITS ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS; A PROPER ANALYSIS WOULD HAVE WARRANTED EITHER THE IMPOSITION OF A LESSER SENTENCE ON COUNT ONE OR SENTENCING DEFENDANT AS A THIRD-DEGREE RATHER THAN A SECOND-DEGREE OFFENDER.

VI. THE JUDGMENT OF CONVICTION (JOC) MUST BE CORRECTED WHERE (A) IT WRONGLY STATES THAT DEFENDANT WAS CONVICTED OF SECOND-DEGREE CHILD ENDANGERMENT; (B) IT IMPOSES COMMUNITY SUPERVISION FOR LIFE, WHICH WAS NOT PART OF THE SENTENCING COURT'S ORAL DECISION; AND (C) IT WRONGLY INDICATES THAT DEFENDANT PLED GUILTY. (NOT RAISED BELOW)

We do not find it necessary to address all of defendant's contentions in detail because we are convinced the trial court's charge did not correctly instruct the jury as to the manner in which it could consider the "fresh complaint" testimony offered by T.C.'s friend P.M. Fresh complaint testimony is an exception to the hearsay rule which permits a declarant to testify that a victim complained about the offending act having been committed. Thus, when P.M. testified, she was permitted to recount what T.C. had told her. Defendant requested the trial court to give a limiting instruction at that point on the limited use of fresh complaint testimony. The trial court declined to do so, stating that it was its preference to address the question in its charge to the jury at the end of the trial.

The purpose of the fresh complaint rule is "to prove only that the alleged victim complained [and] not to corroborate the victim's allegations." State v. Buscham, 360 N.J. Super. 346, 358 (App. Div. 2003) (quoting State v. Bethune, 121 N.J. 137, 146 (1990)). Fresh complaint testimony is admissible "to allow the State to meet in advance the negative inference which would be drawn from the absence of evidence that the victim reported the incident to one to whom she would naturally turn for comfort and advice." State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006) (quoting State v. J.S., 222 N.J. Super. 247, 256 (App. Div. 1988)).

Because of the limited purpose to be served by fresh complaint testimony, a trial court must be vigilant to control the scope of the testimony. A witness may testify that a complaint was related by the declarant but not the details of that complaint. State v. Bethune, supra, 121 N.J. at 146-47. State v. Hill, 121 N.J. 150, 163 (1990) ("Only the fact of the complaint, not the details, is admissible.").

Further, it is critical that a jury be clearly instructed as to the limited manner in which it may consider fresh complaint testimony.

Trial courts should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case. The trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent.

[State v. Bethune, supra, 121 N.J. at 148.]

The model jury charge on the use of fresh complaint testimony prior to the time of defendant's trial, stated in pertinent part:

In this case, you heard testimony that sometime after the alleged sexual offense, -(name) complained to _____ about what had taken place. More particularly, there was testimony that . . . . (The court should specify for the jury the particular testimony to which the fresh complaint rule applies.)

The law recognizes that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone whom (he/she) would ordinarily turn for sympathy, protection or advice. If there was no evidence that (name) made such a complaint, some might conclude that no sexual offense occurred.

As a result, in cases involving an allegation of a sexual offense, the State is permitted to introduce evidence of the complaint. . . . The only reason that the evidence is permitted is to negate the inference that (name) failed to confide in anyone about the sexual offense. In other words, the narrow purpose of the fresh-complaint rule is to allow the State to introduce such evidence to negate any inference that (name) failed to tell anyone about the sexual offense, and that, therefore, (his/her) later assertion could not be believed.

A fresh-complaint is not evidence that the sexual offense actually occurred, or that (name) is credible. It merely serves to negate any inference that because of (his/her) assumed silence, the offense did not occur. It does not strengthen (his/her) credibility. It does not prove the underlying truth of the sexual offense. A fresh-complaint only dispels any negative inference that might be made from (his/her) assumed silence. . . .

It is, of course, up to you to determine what the facts are with regard to the circumstances of the complaint and what weight to give to these facts in determining whether or not a complaint was made.

As I have indicated earlier, this testimony was permitted for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that the sexual offense occurred nor proof that (name) was truthful. It merely dispels any negative inference that might arise from (his/her) assumed silence. It eliminates any negative inference that (his/her) claims of having been sexually assaulted are false because of (his/her) assumed failure to have confided in anyone about the sexual offense.*fn1

[Model Jury Charge (Criminal), "Fresh Complaint" (2003).]

The trial court, however, elected not to give that model charge. It instructed the jury in the following manner:

If you recall, ladies and gentlemen of the jury, [T.C.'s] friend, [P.M.][,] testified as to something that [T.C.] told her. Normally this would be considered hearsay. She was testifying as to what someone else told her. There is an exception under our Rules of Evidence to allow this type of hearsay. It's known as fresh complaint testimony.

Now the reason for the exception is that the law recognizes that there are stereotypes about sexual assault complaints that may lead some of you to question the credibility of a complaining witness based solely on the fact that they did not complain about the allegation or abuse sooner. You may not automatically conclude that [T.C.'s] testimony is untruthful based only on her delayed disclosure, rather you may consider the delayed disclosure along with all other evidence including [T.C.'s] explanation for her delayed disclosure when you decide how much weight to afford to the testimony of [T.C.].

To make that a little more clear, ladies and gentlemen, fresh complain (sic) testimony is allowed only to show that within a reasonable time the victim reported the criminal event to one in whom she would naturally confide under the circumstances, not for the truth of the victim's complaint.

The purpose of the rule is one which enables the State to meet in advance the internal contradiction which might appear from an apparent failure of the victim to make such a complaint. It's used to confine, to neutralize the inference that might otherwise be drawn if her behavior was inconsistent with a claim of sexual abuse.

There are two aspects to defendant's argument. He contends that the jury should have been instructed on the limited role of fresh complaint testimony at the time that P.M. testified. He also contends that the charge ultimately given was deficient.

Defendant has not provided us with any reported authority requiring a trial court to give a fresh complaint instruction to the jury at the time the testimony is presented. We agree that in light of the substantial potential for prejudice redounding against a defendant from such testimony that it would be the better practice to give the jury such an instruction at the point in the trial at which the jury first hears the testimony and then again in the final charge. We can perceive no reason to distinguish with respect to the timing of a limiting instruction between fresh complaint testimony and evidence of prior bad acts. State v. Nance, 148 N.J. 376, 392 (1997); State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div. 2000) ("[A] prompt delivery of limiting instructions, either before, simultaneously with, or immediately after, the admission of other crimes evidence is preferable, and--unless there is some compelling reason to do otherwise--should be standard procedure followed by trial courts in all cases."). Nonetheless, we decline to consider the failure to give a contemporaneous limiting instruction to be reversible error.

We agree, however, that the charge that was given to the jury was significantly incomplete. Critically, this charge did not clearly inform the jury that it could not consider P.M.'s testimony as to what T.C. had told her to be evidence that defendant had, in fact, assaulted her. We have recognized that such an instruction is a "necessity." State v. Buscham, supra, 360 N.J. Super. at 359.

We are cognizant, of course, that defendant did not interpose an objection to this portion of the charge, and thus to prevail on appeal, he must establish plain error. R. 2:10-2. We confronted such a question in Buscham, supra, and there found the complete absence of a charge on the proper usage of fresh complaint testimony did constitute plain error because the prosecutor referred to that testimony in summation as corroborative evidence of the victim's credibility. Id. at 359-60.

Here, a similar argument was made. The prosecutor, in her summation, after telling the jury that the case turned on T.C.'s credibility, pointed to P.M.'s testimony [10/12, p. 67, l. 9-10], in such a manner as to imply it could be used to corroborate T.C.'s testimony. That corroboration is precisely what the jury should have been clearly told it could not find in P.M.'s testimony.

We are sensitive to the fact that trials such as these are wrenching experiences, both for a defendant and a victim. We recognize that T.C. may find it uncomfortable to have to, once again, relate her experiences to a jury. We cannot, however, permit our natural sympathy for her to detract from defendant's right to have a jury correctly instructed before it decides whether the State has established beyond a reasonable doubt that he is guilty of these charges.

In light of this disposition, it is unnecessary to address in detail the remainder of defendant's arguments. On retrial, however, we trust that the prosecutor will not tell the jury that T.C. was being "victimized" by the trial in light of the necessity of the State proving all the elements of these crimes beyond a reasonable doubt.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.


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