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State v. R.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
R.M., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-09-0855.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Lisa and Simonelli.

A jury convicted defendant R.M. of second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24- 4a (count one); and third degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count two). Judge Waters sentenced defendant to a seven-year term of imprisonment on count one, and a concurrent four-year term of imprisonment on count two. The judge also imposed community supervision for life and the appropriate penalties, assessments, surcharges, and fees.

On appeal, defendant raises the following contentions:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RULING THAT "AM" WAS NOT COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601.

POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ADJOURNING THE TRIAL TO PERMIT THE TESTIMONY OF DYFS CASE WORKER MARY BRAWNER COOPER.

POINT III: THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED THE OFFENSES OF ENDANGERING THE WELFARE OF A CHILD AND AGGRAVATED CRIMINAL SEXUAL CONTACT BEYOND A REASONABLE DOUBT, THUS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND THE TRIAL COURT FAILED TO CONSIDER MITIGATING FACTORS ON THE DEFENDANT'S BEHALF.

We reject these contentions and affirm.

The victim, B.B., was defendant's thirteen-year-old stepdaughter. At the time of the incident giving rise to defendant's conviction, B.B. lived with defendant, her mother, J.M.,*fn1 her sister, N.B., her seven-year-old half-sister, A.M., and her half-brother, C.M. B.B. testified that one evening in April 2003, she was getting ready for bed when defendant entered her room, which she shared with her sisters. B.B. thought her sisters were asleep in their nearby bunk-bed. B.B. was standing near her bed in pajamas when defendant came from behind, used one hand to grab one of her arms by the wrist, and pulled her arm back behind her,*fn2 placing her hand on top of his shorts and moving it around his genitals "in a circular motion[]" for a few seconds. As he performed this act, defendant said softly in B.B.'s ear, "You know you want to touch it." B.B. did not scream or yell. She took her hand away and sat on her bed. Defendant then exited the bedroom. B.B. did not immediately tell her mother or sisters about the incident.*fn3 A few days later, B.B. told her maternal grandmother, S.S.; and she told her father, E.B., about two weeks later.

E.B. reported the incident to the police. After a police investigation, defendant was arrested. At trial, defendant claimed that B.B. fabricated the story because she was upset over her parents' decision to ground her for a week over some "graphic" letters she had written to a neighbor's son.

In addition to denying any sexual contact with B.B., defendant sought to portray her as untrustworthy. To do so, he attempted to introduce A.M.'s testimony, alleging that A.M. was awake in the bedroom when the alleged incident occurred and would presumably deny any sexual contact occurred.*fn4 Defendant contends the trial judge erroneously precluded A.M.'s testimony.

We review the judge's evidentiary ruling under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991).

At a hearing, defense counsel questioned A.M. as follows:

Q: Okay. Let me ask you a question. Do you know what tell the truth means?

A: Yes.

Q: Okay. If I show you this book here and I tell you that this color -- this is the 2001/2002 Criminal Code Annotated (inaudible) and I tell you that this color is blue up here, would I be telling the truth or not?

A: No.

Q: Because what color is it?

A: Red.

Q: . . . Now, you know what it means to lie?

A: (No Audible response)

Q: Do you?

A: (No audible response)

THE COURT: Ma'am -- the record will reflect that the child's grandmother was shaking her head yes, as is the Defendant. That's called non-verbal testimony, folks, and if I see it again, you will be removed from the courtroom and you will not be permitted to be in here. . .

Q: Okay. To tell the truth, what does it mean?

A: (No audible response)

Q: So is tell the truth saying things the way they are?

A: Yes.

Q: Because I'm not telling the truth; right?

A: (No audible response[)].

THE COURT: Yes?

[THE WITNESS]: Yes.

Q: Do you know the difference between the truth and not telling the truth?

A: (No audible response)

The Prosecutor objected to A.M. testifying because "she hasn't been able at this point to communicate the difference between the truth and a lie." Judge Waters then proceeded to question A.M. as follows:

Q: . . . Can you tell me if you know the difference between telling the truth and telling a lie?

A: No.

Q: You don't? Do you get those confused sometimes?

A: Yes.

Q: What happens to you when you tell a lie?

A: You get in trouble.

Q: You get in trouble. Now, what kind of trouble? What would happen to you if you were to tell a lie?

A: (no audible response)

Q: And do you understand how important it is to tell the truth the whole time?

A: Yes. Yes.

Q: Okay. Do you ever tell lies at home?

A: Sometimes.

Q: Sometimes? And did you ever -- did anyone find out that you did?

A: Yeah.

Q: And what happened?

A: I got in trouble.

Q: What kind of trouble?

A: (No audible response)

Q: You don't remember?

A: I don't remember.

Q: Do you know what an oath is? You heard that word before?

A: No.

Q: You don't know what that means?

A: I don't.

Q: Huh?

A: I don't.

Q: No? Did you ever cross your heart and promise to tell the truth?

A: No.

At this point in the questioning, the judge expressed serious doubt over A.M.'s competency to testify, but permitted defense counsel to further question the child as follows:

Q: And when you find out something the way it really is, is that the truth?

A: (No audible response)

Q: Do you understand my question?

A: (No audible response)

Q: No? Blue's Clues is always looking for the clues to get where? To do what?

A: (No audible response)

Q: He's trying to find out something; right?

A: (No audible response)

Q: When I asked you if you know what it means to tell the truth, I asked you before do you know what that means; to tell the truth?

A: Yes.

Q: What does it mean?

A: It means --

Q: What does it mean to tell the truth about the way something is?

A: (No audible response)

THE COURT: All right. She's not able to answer the question.

The judge found A.M. incompetent to testify, concluding as follows:

[Certainly, we have to understand that a witness is] capable of understanding the difference between telling the truth and telling a lie. Age is not a critical factor, although certainly we should be more circumspect when we're dealing with a child of six, as opposed to a child of 13.

In this instance, we have a child of six years old at the present time or seven years old -- I'm sorry -- at the present time, six years old when an event occurred. And she's seven years old and frankly, I'm going to -- my observation is she's a bit immature for seven. I don't mean that in any critical fashion. It's just an observation that I made. She seems to be a bit immature. We're all -- even grownups have levels of maturity, obviously.

But I have to determine the ability to tell the difference between a lie and the truth and I think that she does know the difference between that.

I also have to under -- the -- have some idea that she has a concept of the importance of telling the truth in given circumstances and making and keeping promises. She has some inclination of that but I'm not satisfied sufficiently with regard to that.

I -- in determining whether a person's going to be a competent witness, the Court also has to take into account the witness's "mental capacity" to testify. And the Court's focus is on the ability of the child to understand questions and to frame and express intelligent answers. And I don't really feel that we have sufficient maturity in that respect here.

So I have concerns over her ability to determine -- I'm not satisfied with respect to her ability to determine the duty, if you will, that telling the truth would be involved here. Notwithstanding that the fact that she has no concept whatsoever regarding an oath and I would understand that, from a six-year-old.

But certainly for her to be able to express -- I mean, the component of this witness had to satisfy this Court that she has the capability of understanding and a duty to tell the truth and I'm not sure that I have that. Matter of fact I'm sure I don't have that.

It is within the trial judge's discretion to admit or preclude the testimony of a child witness in the same manner as an adult witness. State v. G.C., 188 N.J. 118, 132 (2006) (citing N.J.R.E. 601); State v. Krivacska, 341 N.J. Super. 1, 33 (App. Div.) (quoting State v. Gambutti, 36 N.J. Super. 219, 223 (App. Div. 1955)), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002). We will not disturb the trial judge's competency determination "unless it plainly lacks support in the record below." State in re R.R., 79 N.J. 97,113 (1979).

"The purpose of the trial judge's inquiry into an infant's understanding of the duty to speak the truth is that of determining whether the child possesses 'moral responsibility' - that is, a consciousness of the duty to tell the truth." Ibid. (citation omitted). The trial judge must determine whether "the child understands (a) the difference between right and wrong; (b) that to tell the truth is 'right'; and (c) that [the child] will be punished in some way should he [or she] lie to the court." Id. at 114 (citation omitted). The child's comprehension of the duty to tell the truth "necessarily implicates the consequences arising as a result of a failure to comply with the duty." G.C., supra, 188 N.J. at 133.

Based upon our review of the record, we are satisfied Judge Waters properly precluded A.M.'s testimony. The child was clearly incapable of understanding her obligation to tell the truth, and did not understand the difference between telling the truth and telling a lie.

Defendant also sought to call a caseworker from the Division of Youth and Family Services (DYFS) to testify that E.B. expressed some doubt about the truthfulness of his daughter's accusation against defendant, and that B.B. had a history of untruthfulness. Defendant did not subpoena the caseworker at least five days before trial, Rule 1:9-1, and she was unavailable on the day she was called to testify. Defendant contends that Judge Waters erroneously refused to delay the trial until the caseworker was available.

Defendant did not file a motion for an adjournment.

However, the record indicates the judge's inclination to deny a formal motion if one was made. Thus, we address the merits of defendant's contention.

"The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, the denial of a request for an adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965) (citing State v. (Frank R.) Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. (1962)).

Applying this standard, we discern no abuse of discretion.

The judge permitted defendant and J.M. to testify about the caseworker's hearsay statement that DYFS did not find any wrongdoing by defendant in its initial investigation and allowed the children to continue living with defendant. Other witnesses also testified that the children continued living with defendant until October 2003. Also, defense counsel did not confront E.M. with a prior inconsistent statement about B.B.'s truthfulness.

Thus, the caseworker's testimony would have been extrinsic evidence barred by N.J.R.E. 613(b).

Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). However, we add the following comments.

There was sufficient evidence in the record to support the conviction. State v. Muhammad, 182 N.J. 551, 558 (2005). Also, the record supports the judge's finding of aggravating factor N.J.S.A. 2C:44-1a(3) based upon defendant's prior criminal history; and rejection of mitigating factors N.J.S.A. 2C:44- 1b(7) through (12). The sentence complies with the statutory guidelines and is unremarkable.

Affirmed.


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