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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...