June 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH GUENTHER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-05-0603.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Winkelstein and Yannotti.
Defendant Kenneth Guenther was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; two counts of second-degree sexual assault, N.J.S.A. 2C:14-2a, -2b; and one count of second-degree child endangerment, N.J.S.A. 2C:24-4a. On defendant's direct appeal, the Supreme Court remanded the matter to the trial court to determine whether the victim of the sexual assaults made a prior false accusation of criminal conduct and, if so, whether such evidence was admissible. State v. Guenther, 181 N.J. 129, 160-61 (2004). Defendant appeals from an order entered by the trial court following the remand hearing, which declared that the victim had not made any prior false accusations of criminal conduct. For the reasons that follow, we affirm.
We briefly summarize the factual background, as drawn from the Supreme Court's opinion. In January 2000, D.F., who was then fourteen years old, alleged that defendant had sexually abused her from the time she was nine-years old. Id. at 134. Defendant had been living with D.F. and D.F.'s mother since D.F. was four years old. Ibid. According to D.F., the sexual abuse occurred monthly when she and defendant were home alone. Ibid.
On the first day of the trial, the assistant prosecutor provided defense counsel with documents which suggested that, several months before she accused defendant of sexual abuse, D.F. admitted that she falsely accused a neighbor of sexual offenses. Id. at 132. The documents were two investigation reports from the Ocean County Prosecutor's Office and two letters addressed to the prosecutor's office, one from Johan E. de Brigard, the vice- principal of the school that D.F. attended, and the other from Mary Ellen Cordisco, a counselor at the school. Id. at 132-33.
The letters from Ms. de Brigard and Ms. Cordisco stated that D.F. told her classmates, D.D. and J.O., that she had been sexually abused by a neighbor named Tony. Id. at 133. The letter stated that D.F. informed her friends that Tony "'had exposed himself to her and that he had forced her to have sex with him.'" Ibid. D.F. apparently was "distraught" when she made that claim to her classmates. One day while she was walking home from school with D.D., D.F. pointed to Tony and said that he was the person who she had spoken about. Ibid. On April 23, 1999, D.D. and J.O. went to Ms. Cordisco and "reported what they had learned[.]" Ibid.
The Supreme Court further summarized the information drawn from the documents that the assistant prosecutor provided to defense counsel:
Ms. Cordisco questioned D.F. in the presence of her two classmates concerning her claim of abuse. D.F., at first, "became very defensive, and then hostile and adamantly denied everything." D.F., however, "finally admitted to telling the girls the story about [the neighbor]" and admitted that "she was lying at the time."
Later, D.F. was interviewed by Ms. de Brigard, . . . also in the presence of the two girls and Ms. Cordisco. When Ms. de Brigard repeated to D.F. the account she had purportedly given to D.D. and J.O., D.F. "became upset" that her classmates had betrayed her confidence. D.F. admitted telling the "story" to D.D. and J.O. and confessed "that it was a lie." D.F. explained that she babysat for Tony and his wife and was "angry" at him because she "had heard stories about him" of a "sexual nature." D.F. did not elaborate on those stories, but told Ms. de Brigard that she "was sorry she had made-up the charges."
That same day, Ms. de Brigard provided the information gathered during her interview to the Ocean County Prosecutor's Office. On May 8, 1999, D.F. was questioned by an investigator from the prosecutor's office. D.F. denied making the claims to her classmates and denied that her neighbor had abused her. She maintained that J.O. "made up the story to Ms. Cordisco" and that D.D. went along with it. The investigator's reports did not explain why D.F. admitted to both Ms. Cordisco and Ms. de Brigard that she had made false accusations. The investigation was completed on July 1, 1999, without the filing of any charges against the neighbor.
[Id. at 133-34.]
In his appeal to this court, and later to the Supreme Court, defendant argued that the trial court erred by prohibiting him from challenging D.F.'s credibility with evidence that she made prior false accusations of criminal conduct by "Tony" or, as he is sometimes referred to, "A.O." 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." Id. at 154.
The Court stated that the trial court must first conduct an admissibility hearing pursuant to N.J.R.E. 104. Id. at 157. The trial judge "must determine by a preponderance of the evidence whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false." Ibid.
The Court noted that the following factors are among those that the trial court should consider in determining whether the evidence is 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 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.
The Court added that, "[i]f the court, pursuant to its gate-keeping role, determines that evidence of the prior false accusation is admissible, the court has the discretion to limit the number of witnesses who will testify concerning the matter at trial." Ibid. Further, the court "must ensure that testimony on the subject does not become a second trial, eclipsing the trial of the crimes charged." Ibid. The Court remanded the matter to the trial court for a hearing to determine the admissibility of the prior false criminal accusation alleged to have been made by D.F. If the trial court finds that evidence of the prior accusation should have been admitted pursuant to the standards set forth in this opinion, then a new trial shall be granted.
If the evidence of the prior accusation is deemed inadmissible, then the conviction shall stand.
[Id. at 160-61.]
The Court made the following observations regarding the evidence that D.F. made a prior false accusation of criminal conduct:
Assuming that Ms. Cordisco and Ms. de Brigard testify consistently with the letters they forwarded to the Ocean County Prosecutor's Office, their testimony alone, if believed, would be sufficient to establish that D.F. made an accusation of a criminal nature that she knew to be false. If D.F. admits to making the false accusation, then there would be no need for the defense to call any witnesses to prove the point. Of course, D.F. would have the opportunity to give an explanation for making the false report. On the other hand, if D.F. denies ever making the allegation to J.O. and D.D., as she did when questioned by members of the prosecutor's office, then defendant could rebut that testimony by calling the two school officials. We give this guidance for the purpose of suggesting that it is possible to present this issue economically, without calling redundant witnesses, confusing the issues and causing a sideshow. Of course, we have before us only a documentary record, and the trial court on remand, in determining admissibility, must take testimony and make the appropriate findings from that testimony. [Id. at 158-59.]
At the remand hearing, Ms. de Brigard testified that D.D. and J.O. informed Ms. Cordisco that D.F. "allegedly told them something about this man who lived in their neighborhood." According to Ms. de Brigard, J.O. and D.D. told Ms. Cordisco that D.F. said that she had either been molested "or there was some kind of sexual problem with a gentleman who lived down the street who she babysat for." Ms. de Brigard was told that D.F. claimed that the man exposed himself and forced her to have sex with him.
Ms. de Brigard met with Ms. Cordisco, D.F., D.D. and J.O. She asked D.F. about the allegations. D.F. became upset and said that the allegations were not true. D.F. mentioned A.O. and said that she knew that A.O. had been convicted of some sexual offense. D.F. said that A.O. resided in her neighborhood and she baby-sat for his children. According to Ms. de Brigard, D.F. indicated that several months before the meeting, she had been angry at A.O. "for whatever reason" and she made up the allegations because she knew that A.O. would get into trouble.
Ms. de Brigard testified that D.F. admitted making the allegations about A.O. to her friends but D.F. said that they were not true. D.F. indicated that she was no longer angry at A.O. and she was sorry that she had made up the story. Ms. de Brigard brought the information to the attention of the school principal and contacted the prosecutor's office. She subsequently wrote a letter to the prosecutor's office detailing the conversations she had with Ms. Cordisco and the girls.
Ms. de Brigard additionally testified that defendant's name was not mentioned at the meeting with Ms. Cordisco and the girls. She stated that, had there been an allegation that defendant was sexually abusing D.F., she would have contacted D.F.'s mother, the Division of Youth and Family Services, and the prosecutor's office. Ms. de Brigard said that D.F. only provided her with information about A.O.
On cross-examination, Ms. de Brigard stated that at the meeting, D.F. never made any accusation regarding A.O. She said that the only thing that she had been told was that there had been a conversation among two or three thirteen-year-old girls, which occurred several months before, and J.O. and D.D. had brought the matter to Ms. Cordisco's attention.
J.O. testified that in April 1999, she and D.D. went to speak to Ms. Cordisco because J.O. "felt" that D.F. "was having family problems at home." J.O. indicated that she believed there was a problem because she would hang out at D.F.'s house and, when defendant came home, D.F. was "like petrified." J.O. said that, before the meeting with Ms. Cordisco, D.F. never told her that she had been sexually abused by A.O.
J.O. further stated that, when she and D.D. went to see Ms. Cordisco, she informed Ms. Cordisco that one of her friends "was being molested or abused at home." According to J.O., Ms. Cordisco thought that J.O. was referring to D.F. J.O. said that she told Ms. Cordisco that she believed D.F. was being sexually molested and abused physically by defendant.
J.O. insisted that D.F. never told her that defendant sexually abused or molested her; however, she "felt" that it was going on. J.O. said that she mentioned A.O. to Ms. Cordisco because D.F. baby-sat for him and he was a convicted sex offender. J.O. also said that D.F. never told her that A.O. had done anything to her of a sexual nature.
J.O. additionally testified that Ms. Cordisco called D.F. to her office and D.F. denied that she was being sexually molested or physically abused by defendant. According to J.O., when they confronted D.F., they did not mention A.O. She said that, aside from telling Ms. Cordisco that D.F. was only allowed to go to A.O.'s house to baby-sit and that he was a sex offender, A.O. was not mentioned.
On cross-examination, J.O. was shown the letter that Ms. Cordisco wrote to the prosecutor's office. In the letter, Ms. Cordisco stated that J.O. had reported that D.F. had been upset because an adult neighbor had asked her for a sexual favor. J.O. testified that the letter was wrong in this regard.
J.O. additionally stated that she did not recall meeting with Ms. de Brigard. She said that Ms. de Brigard wanted her "to back off" about the "situation" with defendant because, at that time, D.F. was still denying that defendant was sexually abusing her. J.O. stated that she did not recall hearing anyone tell Ms. de Brigard that a man had exposed himself to D.F. and forced her to have sex with him. She denied that D.F. ever made that statement to her and D.D.
J.O.'s mother, M.O., also testified. She said that in the spring of 1999, J.O. was upset because she believed D.F. was being molested and abused. According to M.O., J.O. had been upset for about five or six months. M.O. told her daughter that she needed to speak to someone at school. M.O. said that J.O. thought that defendant was abusing or molesting D.F. M.O. indicated that J.O. never told her that she thought D.F. was being abused or molested by someone for whom D.F. baby-sat. M.O. said that the name "Tony" or "A.O." never came up. According to M.O., J.O.'s concerns related strictly to what was going on in D.F.'s home.
D.F. testified that in April 1999, she was called to Ms. Cordisco's office. At the meeting, Ms. Cordisco stated that J.O. and D.D. informed her that D.F. said a neighbor had exposed himself to her. D.F. testified that she told Ms. Cordisco that it was not true but Ms. Cordisco "kept drilling" her about the allegation. D.F. indicated that, prior to her meeting with Ms. Cordisco, she never told J.O. or D.D. that A.O. had exposed himself to her, had asked her for a sexual favor, or forced her to have sex with him.
However, D.F. stated that after about forty-five minutes of questioning, she admitted that she told J.O. and D.D. that A.O. had engaged in that conduct. D.F. testified that she lied about it because she "figured" that was "the only way to get out of the office" and she would not get "in as much trouble" if she admitted saying that to her friends.
D.F. additionally testified that, after she met with an investigator from the prosecutor's office, she spoke to J.O. and D.D. and told them that she was "gonna get in trouble at home" because "it started a big thing." D.F. said that J.O. and D.D. "said that they were sorry and that they made it up." According to D.F., J.O. made up the story and D.D. just went along. D.F. insisted that prior to the April 1999 meeting with Ms. Cordisco, nothing of a sexual nature happened between her and A.O. She stated that, prior to the April 1999 meeting, she never told J.O. or D.D. that something of a sexual nature went on between her and A.O.
John Nahrwold, an investigator in the Ocean County Prosecutor's Office, testified that in April 1999, his office received a referral from Ms. de Brigard regarding allegations that A.O. had exposed himself to D.F. Narhwold stated that he contacted Ms. de Brigard and Ms. Cordisco, who advised him that they had received information from D.F.'s friends that something of a sexual nature had occurred involving A.O. and D.F. Nahrwold was informed that D.F. had initially denied that anything sexual had occurred but later she admitted that she told her friends that "something had occurred" with A.O.
Nahrwold interviewed D.F. on May 3, 1999. According to Nahrwold, D.F. denied that anything of a sexual nature had ever occurred with A.O. She stated that J.O. and D.D. had informed Ms. Cordisco that D.F. had disclosed to them that "something had happened" with A.O. However, D.F. told Nahrwold that nothing had occurred. She admitted, however, that she went along with what J.O. and D.D. said but it was not true. D.F. also told Nahrwold that she spoke to D.D., who said that J.O. made up the story and told her "to basically go along with what she was saying."
On cross-examination, Nahrwold stated that when he responded to Ms. de Brigard's referral, there was no allegation that defendant had sexually abused D.F. He said that all of the allegations at that time pertained to A.O. Nahrwold indicated that D.F. told him that her friends made up the story about A.O. Nahrwold said that A.O. was a sex offender who was registered under Megan's Law and classified as a Tier I offender.
Ms. Cordisco*fn1 testified that on April 23, 1999, she met with J.O. and D.D. She said that J.O. and D.D. were concerned about D.F. because they thought that "something was terribly wrong at home." According to Ms. Cordisco, J.O. and D.D. said that D.F. seemed very sad all the time and she was not allowed to go out much. Ms. Cordisco stated that J.O. and D.D. "felt that things were not right at home, but they weren't really sure exactly what was going on."
Ms. Cordisco also testified that it was "hard to remember back that far . . . but [she] believe[d] the girls told [her] that [D.F.] had said a neighbor was harrassing her or had asked her for a sexual favor." Ms. Cordisco said that J.O. and D.D. thought D.F. "felt threatened" by this neighbor and the threat was of a sexual nature. According to Ms. Cordisco, the girls said that the neighbor made a sexual comment to D.F.
Ms. Cordisco informed Ms. de Brigard about the matter and they called the three girls to a meeting. At that meeting, J.O. and D.D. repeated what they previously told Ms. Cordisco, and they asked D.F. to provide more information but she was reluctant to do so. Ms. Cordisco said that D.F. was very upset that J.O. and D.D. brought this information to her and Ms. de Brigard and D.F. resisted discussing the matter.
However, Ms. Cordisco testified that D.F. "finally did say that there was a neighbor named Tony who had made some sexual comment to her, and she was afraid of him." Ms. Cordisco indicated that she later learned that D.F. baby-sat for Tony occasionally. Ms. Cordisco said that, at that point, the story was that Tony was abusive but had not touched D.F.
Ms. Cordisco additionally stated that D.F. did not tell her that Tony had sex with her, although Ms. Cordisco indicated that such an allegation had been made. Ms. Cordisco said that D.F. stated that Tony had been sexually abusive, made sexual comments, and she was afraid of him. However, later in the day, after Ms. de Brigard called the prosecutor's office to report the matter, D.F. "recanted the story and said that she made it up." According to Ms. Cordisco, D.F. stated that she told her friends about Tony's sexual abuse and comments but she said that it was a lie.
Ms. Cordisco added that in her discussions with the girls, defendant's name never came up. At that time, D.F. had not made any allegation that defendant was sexually abusing her. Ms. Cordisco also said that she tried to speak with D.F. one other time and D.F. was adamant that the allegations about A.O. were "a lie, she made it up, nothing was wrong, [and] everything was fine."
Based on this evidence, the trial judge found that for several months prior to April 1999, J.O. was concerned about D.F.'s emotional state. The judge said that J.O. thought that defendant was abusing D.F. According to the judge, J.O.'s belief was not based on anything that D.F. ever said to her but was rather a "feeling" that she had. The judge made the following findings:
Now, while I'm satisfied that [J.O.] had this "feeling" and perhaps wanted to verbalize it, that she did not. [J.O.] recalled mentioning [A.O.] to Miss Cordisco, but denied saying that he did anything to [D.F.].
I'm satisfied that [J.O.] did tell Miss Cordisco that [A.O.] had made a sexual comment to [D.F.]. She did not say that [A.O.] had engaged in any sexual conduct in the presence of [D.F.] or with [D.F.]. This I note is corroborated by the letter Miss Cordisco addressed to Investigator Nahrwold of the prosecutor's office on May 18th, 1999, as well as Miss Cordisco's testimony.
In Miss Cordisco's letter[,] she notes that [J.O.] and [D.D.] came to see her because they were concerned that [D.F.] was being abused at home. Her testimony at the hearing was to the same effect. [She testified that] "[t]hey felt that something was terribly wrong at home. They thought that she might be being abused. And they were just worried. And they said their friend would not talk to them. And they thought maybe she might [talk] to me." . . .
Additionally in her letter and testimony, Miss Cordisco related that [J.O.] and [D.D.] told her that [D.F.] told them sometime ago that a neighbor, Tony, a convicted child molester, had asked her for a sexual favor. Miss Cordisco was certain in her testimony that the two girls did not say that there had been any sexual conduct or contact with the neighbor. That it was just "that he made a sexual comment to her." . . .
Ms. Cordisco then summoned [D.F.] to her office. She advised [D.F.] what her friends [J.O.] and [D.D.] had told her, and questioned her about it. [D.F.] denied that she ever said anything of the sort. And [she] denied that she [had been] subjected to any sexual comments or misconduct by [A.O.] or anyone else.
I find that Miss Cordisco was not going to let the matter rest or accept that response from [D.F.]. [D.F.] in her testimony said that Ms. Cordisco kept "drilling" her and would not accept her response. Miss Cordisco in her testimony also indicated that it was her opinion that something was going on, perhaps in [D.F.'s] home life, and that [D.F.] was denying it to stop any kind of investigation. . . .
Miss Cordisco then brought the matter to the attention of Miss [de Brigard], the school vice-principal. And [D.F.] was summoned to the vice-principal's office and subjected to further questioning by her and Miss Cordisco.
For some reason, which I cannot fathom or find any support for in the record, Miss [de Brigard] thought that [J.O.] and [D.D.] told Miss Cordisco that [D.F.] had related to them that [A.O.] had exposed himself to her and forced her to have sex with him. . . .
Neither Miss Cordisco nor [J.O.] in their testimony indicated that [D.F.] ever said anything like that. See also, Miss Cordisco's letter.
In any event, both Miss [de Brigard] and Miss Cordisco continued to press [D.F.] about whether or not something sexual had occurred with [A.O.] that she told [J.O.] and [D.D.] about, and about whether there was abuse at her home. . . .
In [D.F.'s] words, they kept "drilling" her and would not accept the response that she had never said anything of the sort. The questioning went on for some [forty-five] minutes, according to [D.F.] And after [thirty] minutes of telling them that she never said it, this [thirteen]-year old decided that the only way to end the interrogation was to tell them what they wanted to hear. . . . So she said she said it and that it was a lie to her classmates. And, again, that nothing of the sort ever occurred. And then the interrogation ended and [D.F.] was permitted to leave.
I find and conclude that [D.F.] never made an allegation to anyone, Ms. [de Brigard], Ms. Cordisco, [J.O.] or [D.D.], that she had been the victim of sexual abuse at the hands of [A.O.], defendant or anyone else.
This entire matter escalated from "feeling" in the mind of [J.O.] that she verbalized first to her mother for some months and then to Miss Cordisco, who along with Miss [de Brigard] pursued the matter with [D.F.], who denied [J.O.'s] verbalized feelings. But eventually to please Miss Cordisco and Miss [de Brigard] and bring the matter to [an] end, lied and said that she told the [A.O.] story to [J.O.] and [D.D.], but it wasn't' true.
The defendant has not proven by a preponderance of the credible evidence that [D.F.] made a "prior accusation charging criminal conduct."
The allegation that [D.F.] made such a prior accusation would be inadmissible. And the conviction of the defendant remains in effect. A new trial is denied.
The trial judge entered an order on August 1, 2007, which memorialized his findings. This appeal followed.
Defendant argues that the trial judge erred by finding that D.F. did not make a prior accusation of criminal conduct. We disagree.
Initially, we note that the role of an appellate court is not to review the factual record "from the point of view of how it would decide the matter if it were a court of first instance." State v. Johnson, 42 N.J. 149, 161 (1964). Rather, an appellate court must defer to the findings of the trial judge that are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case which a reviewing court cannot enjoy." Ibid. Moreover, it is well established that the trial judge's findings are binding on appeal if they "reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Having thoroughly reviewed the testimony presented at the remand hearing in light of these principles of appellate review, we are convinced that the trial judge's findings are supported by sufficient credible evidence in the record.
In our view, the record supports the judge's finding that D.F. never told her friends that she was being sexually abused or molested by A.O. or anyone else. As we indicated previously, D.F. testified that she never made such allegations to her friends. J.O. also testified that D.F. never told her or D.D. that she was being sexually abused by defendant or A.O. J.O. stated that she "felt" that D.F. was being abused at home but she made clear that her belief was not based on anything that D.F. said to her.
Although D.F. informed Ms. Cordisco and Ms. de Brigard that she told her friends that her neighbor made sexual comments to her and sexually abused her, D.F. testified that her statements were not true and the she said that she made the allegations only because Ms. Cordisco and Ms. de Brigard were unrelenting in questioning her about the matter and she wanted the questioning to stop. As noted previously, the judge accepted J.O.'s and D.F.'s testimony.
Defendant argues that the judge erred by finding that J.O. and D.F. were credible. Defendant contends that Ms. Cordisco and Ms. de Brigard were more credible witnesses. Defendant maintains that J.O.'s statements "lack veracity when compared with both the reports and the actual testimony of the school officials."
However, the role of an appellate court is not to assess the credibility of the witnesses or to determine the weight that should be given to their testimony. State v. Barone, 147 N.J. 599, 615 (1997) (citing Johnson, supra, 42 N.J. at 162). That responsibility rests with the trial judge who heard the testimony, observed the witnesses and was better able to assess their credibility than an appellate court. Here, the trial judge accepted J.O.'s and D.F.'s assertions that D.F. never alleged that A.O. had engaged in any unlawful sexual conduct. The judge found that J.O. and D.F. were credible witnesses and he provided sound reasons for his credibility findings.
Defendant additionally contends that the trial judge erred because in its opinion, the Supreme Court stated that, if Ms. Cordisco and Ms. de Brigard testified consistently with the statements in their letters, their testimony would support a finding that D.F. knowingly made a false accusation of a criminal nature. Guenther, supra, 181 N.J. at 158. However, the Court made clear that ultimately the determination as to whether D.F. made a prior accusation of criminal conduct would turn on the credibility of the witnesses at the remand hearing.
Moreover, the Court emphasized that its observations were based upon the documentary evidence and not on any testimony. Id. at 159. Therefore, the Court's observations did not require that the trial court reach any particular result in the remand hearing. Indeed, the Court emphasized that on remand, the trial court "must take testimony and make the appropriate findings from that testimony." Ibid.
We additionally note that in his decision, the trial judge did not find that Ms. Cordisco and Ms. De Brigard were not credible witnesses. However, their testimony was not the best evidence as to what D.F. said to J.O. and D.D. The best evidence on that point was the testimony of J.O. and D.F. Although the statements made in Ms. Cordisco's and Ms. De Brigard's letters and testimony had a bearing upon whether J.O. and D.F. were credible witnesses, the trial judge ultimately came to the conclusion that J.O.'s and D.F.'s testimony was believable. In our view, the judge did not abuse his discretion as fact-finder in accepting their testimony.
Accordingly, we conclude that the trial court's finding that D.F. did not make a prior false accusation of criminal conduct is supported by sufficient credible evidence in the record. Therefore, we affirm the trial court's order finding that the evidence was not admissible and a new trial not required.