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State ex rel H.K.


March 25, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-18-1143-04.

Per curiam.



Submitted February 27, 2008

Before Judges Parker and Lyons.

In this juvenile matter, H.K. appeals from a disposition entered on January 7, 2005, in which he was adjudicated delinquent on charges, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3. He was committed to the Juvenile Justice Center for a period not to exceed one year. H.K. was also ordered to complete a sex offender evaluation and to follow its recommendations and to comply with the Megan's Law notification requirements. He was required to provide a DNA as well as an HIV/AIDS testing sample, submit to fingerprinting, and to follow all recommendations in any court ordered evaluation. Lastly, he was ordered to have no contact with the victim, J.B. After giving due consideration to the contentions advanced on appeal, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. According to the trial testimony of the victim, J.B., on June 16, 2005, J.B., who was then sixteen, was at home alone. At approximately 3:00 p.m., H.K., then age fifteen, came to J.B.'s home and rang the doorbell. J.B. recognized H.K. as an acquaintance from high school. Initially, H.K. asked whether one of J.B.'s neighbors was home. J.B. went to make a telephone call to the neighbors to determine if anyone was home. Thereafter, H.K. entered J.B.'s home and began to run throughout the house. J.B. instructed H.K. to leave and eventually he did.

At 4:07 p.m., while J.B. was on the telephone with her cousin, C.C., H.K. returned to J.B.'s home. Again, he rang the doorbell. J.B. opened the front door, but kept the screen door shut. Without J.B.'s permission, H.K. opened the screen door and moved the victim out of his way by pushing her with his forearm.

H.K. then ran upstairs to the second floor of J.B.'s home. J.B. followed H.K. upstairs and demanded that he leave the house. Repeatedly, J.B. told H.K. that her father was on his way home and that he would be upset if he found H.K. in the house. H.K. eventually followed J.B. into her bedroom. Once inside her bedroom, H.K. started pushing J.B. onto her bed and lifting up her skirt, while trying to pull down her underpants. While J.B. was attempting to pull her underwear up, H.K. began hitting her hands away and her underwear began to rip. After J.B.'s unsuccessful attempts to fight off H.K., he eventually pulled J.B.'s underwear down.

Throughout this, J.B. repeatedly asked H.K. to leave the house. H.K. ignored J.B.'s request. At some point during this episode, H.K. got off the bed and walked toward J.B.'s bedroom door. He stopped at the door and stood with his back toward her. As J.B. testified at trial, she thought at that time H.K. was putting on a condom. Immediately after that, H.K. turned around and pushed J.B. onto the bed. J.B. testified she told H.K., "no, I don't want to do this." However, H.K. did not stop. Rather, he lifted up her skirt, held her arms over her head with her wrists together and inserted his penis inside of her. J.B. struggled and tried to break free. H.K. continued to assault her and eventually dragged her onto the floor. While on the floor, he again inserted his penis inside J.B. She tried to push away from him and told him that he was hurting her. At that point, H.K. stopped and J.B. ran into her bathroom. H.K. came to the bathroom door and asked J.B. if she was all right. J.B. responded that he should leave, and he did so.

At 4:25 p.m., C.C., J.B.'s cousin, testified that she received a telephone call from J.B. In her trial testimony, C.C. stated that J.B. was crying and upset. C.C. testified that J.B. outlined the details of the sexual assault incident to her. C.C. related that when she got off the telephone with J.B., she told her father what had happened. C.C.'s father told her to call J.B. back and have J.B. call her father so that the police could be notified.

At 5:15 p.m., Officer Dawn Breza was notified to respond to J.B.'s home. When she arrived on the scene, she found J.B. distraught and laying in her parent's bed. Officer Breza secured J.B.'s bedroom, obtained a brief statement as to what happened from J.B., and then notified headquarters so that a detective could arrive at the scene. At 5:45 p.m., Detective Shawn Hebbon was notified to come to the scene. Detective Hebbon testified that when he arrived on the scene, he noticed that J.B.'s bed was a little disheveled and that there was a trash can near the bed which contained a yellow condom. Detective Hebbon took a statement from J.B. and then arranged for her to be taken to a local hospital to be examined.

At the hospital, according to the testimony of nurse Dorothy DiFabio, J.B. was examined to determine if she was injured as a result of the assault. Nurse DiFabio was an employee of the county prosecutor's office and testified as a fact witness. Nurse DiFabio described J.B.'s appearance and emotional and physical condition. She noted that J.B. was crying at times during questioning and the examination. Nurse DiFabio related that J.B. answered specific questions concerning the incident. These questions called for a yes or no answer and did not make specific reference to H.K. or the details of the incident. For instance, she was asked questions such as, "Did suspect's fingers contact patient's genitals," and the answer recorded was "no." Nurse DiFabio stated during the testimony that following the examination, she was unable to find any injury to J.B. brought about by the incident. Nurse DiFabio stated that she had examined approximately thirty-six rape victims and found that in those instances in which women younger than twenty-one years old were assaulted, there was generally no injury.

While J.B. was being examined at the hospital, Detective Hebbon went to H.K.'s home and spoke with H.K.'s father. H.K. was not at home but soon returned. In the company of his father, Detective Hebbon asked H.K. if he had any contact with J.B. that day. According to the detective's testimony, H.K. stated that he was not near J.B.'s home that day. Upon hearing that statement, H.K. was formally taken into custody and placed in a juvenile detention center.

The trial of the matter was held on September 29, 2004. At that time, the testimony of Officer Breza, Detective Hebbon, C.C., her mother, J.B., and Nurse DiFabio was heard. In addition, Yasir Price, the neighbor, testified and stated that he had seen H.K. enter the home during the afternoon as J.B. opened the door. After the State's case was completed, H.K.'s attorney advised that the defense had no witnesses and H.K. would not testify.

On November 30, 2004, the trial court rendered its decision. The court made extensive and detailed findings of fact and concluded that the neighbor's observance of H.K. entering the victim's home was with respect to the first time H.K. entered the home and not the second. The trial court concluded that defendant's argument that the sex between the parties was consensual was not supported by the evidence. Rather, the court found J.B.'s testimony to be believable based upon her demeanor. The trial court also found J.B.'s testimony to be credible because the timeframes of the telephone calls coincided closely with her description of what happened. The court also noted that her statements given to her cousin, the police, and the rape examiner also appeared to be consistent throughout. In addition, the trial court found that the testimony of her physical condition, specifically that she was crying when she spoke to her cousin, she was crying when the police officer arrived at the house, and that she continued to be upset and "curled up in a ball with her arms around her legs" in a protective state at the hospital at 7:45 p.m., all supported the finding that there was no consensual sex. The trial court, therefore, found beyond a reasonable doubt, that the charges were proven. The court found the juvenile to be delinquent and scheduled a disposition date. Following the disposition outlined above, this appeal ensued.

On appeal, H.K. presents the following arguments for our consideration:




At the outset, we note that the testimony of each of the three witnesses which H.K. objects to in his arguments set forth above, was not objected to at trial. In the absence of any objection, we must analyze H.K.'s contentions in the context of the plain error rule. R. 2:10-2. Pursuant to that rule, a defendant must establish not only that there was error but also that it was clearly capable of producing an unjust result. State v. Daniels, 182 N.J. 80, 95 (2004) (citing State v. Macon, 57 N.J. 325, 336 (1971)). As we said in State v. Swint, [t]he possibility of an unjust result is not any possibility; the possibility must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. We may infer from a lack of an objection that counsel recognized that the alleged error was of no moment or was a tactical decision to let the error go uncorrected at the trial. [328 N.J. Super. 236, 256 (App. Div. 2000) (internal citations omitted), certif. denied, 165 N.J. 402 (2002).]

H.K. argues that the testimony of Nurse DiFabio was improper expert testimony and served as a vehicle for the prosecutor to introduce a hearsay version of J.B.'s version of the events. The record is clear that Nurse DiFabio was testifying as a fact witness. The opinion objected to appears to be her testimony that victims of sexual assault, particularly those younger than twenty-one years old, often do not have injuries following the assault. As stated, this observation was not objected to.

While it may have been error to allow the witness to testify without qualifying as an expert on the topic, we find it to have had no prejudicial effect on H.K. The absence of injury to J.B. was something that inured to H.K.'s benefit. It supported his argument that any sex between them was consensual. Moreover, H.K.'s brief points out that "the testimony adds nothing to the finder of fact's understanding beyond the simple statement that absence of injury does not alone disprove sexual assault." H.K.'s own brief goes further and states, "nothing DiFabio discovered lent any weight to the State's case."

Because we find any error in permitting DiFabio's testimony to be woefully insufficient to raise a reasonable doubt as to whether the error led the factfinder to the result it might otherwise not have reached, we conclude that H.K.'s objection is without merit.

H.K. also argues that DiFabio's testimony outlining the complainant's version of events was impermissible hearsay and warrants a reversal. We disagree. First of all, the testimony given by DiFabio does not specifically set forth what happened, but only what sexual contact occurred and the nature of that contact. We do not find Nurse DiFabio's statements as adding anything to the State's case. To the extent that J.B.'s statement included in the medical records provided more details, there is an argument that that statement would be admissible pursuant to N.J.R.E. 803(c)(2) and 803(c)(4).*fn1 We do not find, though, that even if J.B.'s reported version of events contained in the medical records were deemed hearsay, its admission would have risen to the level of plain error, given the trial court's conclusion that J.B.'s in-court testimony was credible, as well as consistent with other evidence in the record. State v. Cotto, 182 N.J. 316, 331 (2005). Had the trial court excluded the testimony of DiFabio, the State still could have relied on the testimony of the police and C.C. to corroborate J.B.'s version of events. Consequently, we find no reversible error concerning her testimony.

In points two and three of H.K.'s argument, he argues that C.C.'s fresh complaint testimony contained excessive details and that Detective Hebbon's statement of J.B.'s version was impermissible hearsay. We agree that under the fresh complaint rule, New Jersey courts strictly and uniformly disallow excessive details. State v. Bethune, 121 N.J. 137, 147 (1990). However, C.C.'s testimony was admissible under N.J.R.E. 803(c)(2). An excited utterance, as opposed to a fresh complaint, does not limit the details about which C.C. could testify. We are satisfied, that given the nature of the incident and the timeframes, as well as the testimony concerning J.B.'s condition, that her statement to C.C. and Detective Hebbon, would be admissible as excited utterances pursuant to N.J.R.E. 803(c)(2). See State v. Lazarchick, 314 N.J. Super. 500, 521-22 (App. Div. 1998); State v. Conigliaro, 256 N.J. Super. 54, 62-64 (App. Div. 2002).

Accordingly, we affirm H.K.'s disposition in all respects.


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