On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Yannotti and LeWinn.
In September 1999, defendant was charged in a twenty-three count indictment with two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(b), one count of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(c), and numerous other lesser sexual offenses involving three male victims between the ages of thirteen and sixteen. At his first trial, defendant was convicted of two counts of aggravated sexual assault and most of the lesser offenses. The trial court sentenced defendant to an aggregate term of forty years imprisonment, with thirteen and one-third years of parole ineligibility. On appeal, we reversed defendant's convictions in an unreported opinion on the ground that the trial court had improperly barred an expert from testifying for the defendant due to the late production of his report. State v. Hilkevich, No. A-3632-00T3 (Mar. 5, 2003).
At the retrial, one of the alleged victims declined to testify, and the charges involving that victim were dismissed. A jury again convicted defendant of the two counts of aggravated sexual assault involving the other alleged victims as well as eight lesser charges. The trial court imposed consecutive fifteen-year terms of imprisonment, with five-year periods of parole ineligibility, for the two aggravated sexual assaults. The court also imposed a concurrent six-year term of imprisonment, with two years of parole ineligibility, for second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and concurrent five-year terms of imprisonment, with two years of parole ineligibility, for two counts of aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3a. The court merged defendant's other convictions. Consequently, defendant is now serving an aggregate term of thirty years imprisonment, with ten years of parole ineligibility.
Defendant was a middle school science teacher with a master's degree in counseling services and a doctorate in psychology. In addition to teaching, defendant provided counseling and mentoring services to troubled youths through the Mercer County Youth Advocacy Program.
Defendant lived in a rural area surrounded by woods in Woodland Township and participated in a variety of outdoor activities including rappelling, canoeing and hunting. Defendant would bring the children he mentored as well as adults to his home to participate in those activities. Among the activities defendant engaged in with these participants were native American "sweat ceremonies." In such a ceremony, as described by defendant:
A rather large fire is built and rocks are placed on a fire for about two to three hours, then the rocks are brought in with a pitch fork and placed in a pit . . . and there's a bowl of water next to the ceremonial liter.
. . . And prayers are said and water is poured on the rocks and it's a very intense heat, sauna, and there's breaks, the door opens, we can go out and sometimes we leave and hose off or go into the lake and go back so the ceremony would take maybe two, three hours.
. . . [The ceremony] was divided into four phases, prayers were, certain prayers were said at the beginning of each phase and then there was, usually there was silence because of the heat and then discussions.
One of the victims of the sexual assaults the jury found defendant to have committed was A.C., a participant in the Youth Advocacy Program, who lived in a bad neighborhood in Trenton and came from a seriously dysfunctional family. Defendant became A.C.'s youth advocate when he was around twelve and a year or two later also became his counselor. A.C. made approximately twenty-five trips per year to defendant's home during the three or four year period defendant acted as his youth advocate and counselor. During this time, A.C. engaged in a variety of outdoor activities, including canoeing, rock-climbing, swimming, hunting, camping and sweat ceremonies. A.C. also helped defendant build a teepee.
The sexual assault defendant committed upon A.C. occurred around his fourteenth birthday, in the late spring or summer of 1995. The incident, which occurred in defendant's home, started with A.C. and defendant massaging each other. Defendant began massaging A.C. in the pelvic area and at some point asked A.C. how often he masturbated and when was the last time he had masturbated. After A.C. responded, defendant began touching A.C.'s penis, first with his hands and then with his mouth. As he did this, defendant said to A.C.: "[B]oys, men . . . shouldn't have that build up like that. We should get it out, get it tested, send it over to a lab[.]" A.C. did not ejaculate, and after some time elapsed, defendant stopped engaging in oral sex with him and went into the bathroom.
A.C. continued going to defendant's home for two or three years after this incident, and defendant never again attempted to engage in any sexual activity with him. A.C. did not report the sexual assault until two-and-a-half years later when an investigator from the prosecutor's office came to his residence and interviewed him.
The victim of the other sexual assault the jury found defendant to have committed was M.F., who came to know defendant while a student in his eighth grade science class. At that time, M.F. was suffering psychological problems as a result of his parents' separation and divorce. M.F. became friendly with defendant and at some point began going on camping trips with him. M.F. also went to defendant's home, where he engaged in various outdoor activities, including canoeing, rappelling and participating in sweat ceremonies. Defendant occupied the role of counselor to M.F. when he was experiencing problems with his parents and siblings as a result of the divorce.
The sexual assault defendant committed upon M.F. occurred when M.F. went to defendant's house in the summer of 1997 to attend his third sweat ceremony. M.F. was fourteen at the time. There were very few people at defendant's house when M.F. arrived, and the sweat ceremony apparently was not held. After dinner, defendant took M.F. for a canoe ride on the lake adjacent to his house. During the canoe ride, defendant brought up the subject of masturbation. Defendant asked M.F. whether he ever had a wet dream and told him that he could go into the woods to masturbate if he wanted to. M.F. did not accept this invitation, and the two of them returned to defendant's house after the canoe ride. When they were alone, defendant began massaging M.F.'s neck, which had been causing him problems. While he was doing this, defendant put his hand down the front of M.F.'s chest and into the top of his pants. After a while, defendant took M.F. to the teepee in his backyard, where they slept on adjoining beds. Defendant began messaging M.F. again, and he then dipped his hands into M.F.'s pants and grabbed his penis. After M.F. became erect, defendant turned M.F. around, pushed M.F.'s head down into his crotch and had him perform oral sex on him. Defendant's penis pushed against the side of M.F.'s mouth during this sexual assault. As a result, M.F. gagged several times and temporarily stopped performing oral sex. When this occurred, defendant pushed M.F.'s head back onto his penis. At some point, defendant ejaculated into M.F.'s mouth and then fell asleep. M.F. went back into the house and vomited. According to M.F., before he left defendant's house the next morning, defendant "hugged me and told me that when people love each other things can happen and it's okay and they don't need to discuss it."
M.F. never returned to defendant's house after this sexual assault. Defendant did not tell anyone about this incident until two years later, when he told a female friend about it. The girl notified her older cousin, who encouraged M.F. to disclose defendant's abuse. M.F. subsequently went to the prosecutor's office and gave a taped statement about the sexual assault.
Defendant took the stand and denied ever engaging in any form of sexual activity with either A.C. or M.F.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT'S EXCLUSION OF EVIDENCE THAT M.F. PREVIOUSLY MADE A FALSE CRIMINAL COMPLAINT WAS CONTRARY TO THE EXCEPTION TO N.J.R.E. 608 CARVED OUT BY THE SUPREME COURT IN STATE V. GUENTHER AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONFRONTATION CLAUSE RIGHTS AND HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE.
II. THE TRIAL IMPROPERLY RESTRICTED THE TESTIMONY OF THE DEFENSE'S PSYCHIATRIC EXPERT.
III. THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM REHABILITATING DR. WEISS'S CREDIBILITY WITH TESTIMONY INDICATING THAT IT WOULD HAVE BEEN POINTLESS TO REVIEW THE VIDEOTAPED PORTION OF A.C.'S INTERVIEW BECAUSE THE VIDEOTAPE FAILED TO DEPICT THE FIRST HOUR OF THE INTERVIEW.
IV. THE TRIAL COURT ERRED IN REFUSING TO ORDER A PSYCHIATRIC EVALUATION OF A.C.
V. THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTOR TO CROSS-EXAMINE DR. HILKEVICH BY CONFRONTING HIM WITH THE IRRELEVANT AND UNDULY PREJUDICIAL MAGNIFIED IMAGE OF HIS ERECT PENIS.
VI. THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DR. HILKEVICH OF A FAIR TRIAL.
VII. DR. HILKEVICH'S CONVICTIONS MUST BE REVERSED BECAUSE OF CUMULATIVE ERROR.
VIII. DR. HILKEVICH'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reject the arguments presented under defendant's first seven point headings and affirm his convictions. However, we vacate the sentences imposed upon defendant for the two aggravated assaults and remand the case to the trial court for resentencing.
Defendant's first argument is based on the trial court's denial of his application to be allowed to cross-examine M.F. and introduce evidence regarding M.F.'s alleged false accusation that a teacher physically assaulted him in school. The proffer of this evidence was supported by a report of the institutional abuse investigation unit of the Division of Youth and Family Services (DYFS), which stated that M.F. had alleged that a teacher grabbed him by the neck and slammed him against a locker while he was walking down a school hallway and then punched M.F. in the stomach. M.F. also alleged that the teacher called he and a friend he was walking with "faggots." Another student supported M.F.'s version of the incident. A nurse who examined M.F. after the incident found no visible signs of bruising or injury.
After an investigation, the DYFS institutional abuse investigation unit determined that M.F.'s allegation of physical abuse was "unfounded." It also found that the teacher had engaged in physical and verbal horseplay with students and recommended to the superintendent of schools that the teacher receive counseling regarding the inappropriateness of horseplay with students.
In State v. Guenther, 181 N.J. 129, 154 (2004), the Court held that "in limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." The Court set forth guidelines for determining whether prior false criminal accusation evidence would be admissible:
1. whether the credibility of the victim-witness is the central issue in the case;
2. the similarity of the prior false criminal accusation to the crime [***58] charged;
3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;
4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and
5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. [Id. at 157.]
The Court also stated that a trial court "must ensure that the testimony of [an alleged prior false criminal accusation] does not become a second trial, eclipsing the trial of the crimes charged." Ibid. The Court's holding in Guenther was codified after the trial of this case by the adoption, effective July 1, 2007, of a new paragraph (b) of N.J.R.E. 608, which provides:
The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.
In denying defendant's application to cross-examine M.F. and introduce testimony regarding M.F.'s alleged prior false accusation, the trial court stated, referring to this new rule before its adoption:
Proposed Rule 608(b) says the credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which the defendant is charged if the Judge preliminarily determines by a hearing pursuant to N.J.R.E. 104(a) that the witness knowingly made the prior false accusation. It is clear that the accusation that was made by [M.F.], whether it was a knowingly made prior false accusation or not, is not in any way, shape, or form similar to the allegation in this case. The allegation is that the teacher punched him in the chest and held him up against the locker, thus being a physical ...