On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-02030.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
After the jury found defendant guilty of three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, the trial court granted her motion for a new trial. By leave granted, the State appeals, arguing that the court mistakenly exercised its discretion by granting the new trial motion. We disagree with the State and affirm.
The indictment charged defendant with endangering the welfare of three of her children on July 14, 2005 "by causing [them] harm which would make [them]... abused or neglected child[ren]." We use fictitious names for the children, namely eight-year-old Isa, and six-year-old twins James and Jane. The State alleged that defendant became angry because the children ate cookies without permission and defendant beat the children with a belt. The next evening, through the intervention of the Division of Youth and Family Services (Division or DYFS), the children were taken to the Monmouth County Prosecutor's Office and interviewed by Detective Richard Chapman. Each child was interviewed separately, and the interviews were videotaped. All three children stated that their mother hit them with a belt because they ate the cookies.
In March 2006, the State moved pursuant to N.J.R.E. 404(b) to admit evidence of defendant's prior conviction for endangering the welfare of a child and the underlying facts supporting that conviction. Defendant had pled guilty to the prior charge, and admitted that she struck Isa in the face one time with a belt. She was sentenced to probation and placed under DYFS supervision. The court ruled on the motion on November 3, 2006. In doing so, the court noted that it had the State's brief but that defendant had filed no opposition. The court said "there is an allegation being made that [the] causes of these events were perhaps accidental in nature and that simply is an issue also." When the attorney representing defendant at that time was asked whether he had anything to add, he confirmed he had filed no brief, and said his "argument simply is based on the fourth prong [of the test set forth in State v. Cofield, 127 N.J. 328, 338 (1992) and] that even if the first three prongs are met, that this is extremely prejudicial." Because of the judge's apparent belief that the defense of accident or mistake would be advanced, which would satisfy the first Cofield prong (that the prior crime evidence is relevant to a material issue in dispute), he granted the State's motion.
Trial was held in December 2007. As the time for trial approached, it became clear that the children recanted their statements to Chapman, contending that they lied because they were angry at their mother for various reasons. The three children submitted to a videotape interview in the presence of defense counsel, a defense investigator, and the children's grandmother, in which they said their mother did not hit them. Jane wrote a letter to the judge saying that she lied. At trial, she testified that "[t]he reason why I lied on my mom was because we could not see her, and she never took us no where." And, Isa and Jane had been referred by their school, because of behavioral issues, for a psychiatric evaluation, which was conducted by Dr. Peter Ganine on February 28, 2006. This was unrelated to the charges against defendant. Both children denied to Dr. Ganine ever being abused or hit by their mother. Isa said she previously lied about it.
The prosecutor was furnished with all of this information prior to trial and was aware that the defense would be that defendant never struck the children with a belt and that the children had fabricated the story when they related it to Chapman on July 15, 2005.
A different attorney represented defendant at trial. At the commencement of trial, and again at various times during trial, he objected to the admission of the other crime evidence, insisting that the defense would not claim accident or mistake. The judge adhered to his pretrial ruling. In his opening statement to the jury, defense counsel outlined his general denial defense. He began his opening by telling the jury "it didn't happen."
When the other crime evidence was introduced at trial, and again in the final charge, the judge gave a carefully tailored limiting instruction regarding the prior crime evidence. In relevant part, he said:
However, our Rules of Evidence do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes. In this case, the prior incident has been admitted for the limited purpose to show that what allegedly happened on July 14th, 2005, was not a mistake or an accident. A prior incident can be used for this limited purpose and no other.
The defense takes the position that the children were not hit with a belt on July 14th, 2005. The State must prove beyond a reasonable doubt that [T.A.J.] hit one or more of her children with a belt on July 14th, 2005.
First, you must decide if [T.A.J.] used a belt on July 14th, 2005. And in making that decision you cannot use the prior conviction. If you use the prior conviction in making that decision, you will act contrary to my charge and violate your oath to decide this case fairly. It is only if you determine that [T.A.J.] hit one or more of the children with a belt, that you may resort to analyzing whether that prior conviction has any relevance to this case.
Whether this evidence does, in fact, demonstrate absence of mistake or accident, is for you to decide. You may decide that the evidence does not demonstrate the absence of mistake or accident, and is not helpful to you at all. In that case you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate the absence of mistake or accident, and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes, or that she is a bad person. That is, you may not decide that just because the defendant had committed a prior crime, she must be guilty of the present charges.
I have admitted the evidence only to help you decide the specific question of absence of mistake or accident. You may not consider it for any other purpose. You may not find the defendant guilty now simply because the State has offered evidence that she committed a prior crime. [Emphasis added.]
The other crime evidence was admitted through the testimony of a Monmouth County Prosecutor's Office detective. She described that Isa exhibited a crescent-shaped injury under her eye on her cheek and said her mother hit her with a belt. Defendant admitted that she hit Isa with a belt. As a result, defendant was convicted and sentenced.
Each of the children was called by the State at trial and denied that defendant hit them. The videotape interviews by Chapman of all three children were then played for the jury. See N.J.R.E. 613(b) and N.J.R.E. 803(a)(1). We have viewed the recorded interviews. Isa said defendant whipped her with a belt. She said defendant hit her two times on the legs. She pointed to her thigh, indicating a mark made by the belt. When it was suggested to her that she had other marks, including on the sides of her torso, she said they were from other causes, suggesting that her bathing suit caused those marks. She also said defendant hit her younger brother and sister, James and Jane. When asked about marks on James' chest and back, Isa described them as "pee pee bumps," caused by his wetting the bed. James said defendant hit him on his legs because he and his sisters ate the cookies. He pointed to his right thigh and the side of his right lower leg. He also pointed to areas on his arms, chest, stomach and back which he said showed marks where his mother hit him with a belt. Jane said her mother whooped her on her legs. She said she had a bruise on her right thigh, but it went away. She said her mother hit her with the buckle of the belt (as opposed to the other two children who said defendant used the plain end). With respect to other bruising on her wrist and stomach, Jane said that came from fighting with her baby sister, who would punch her and grab her.
Defendant did not testify. Defense counsel began his summation the same way he began his opening statement, by telling the jury "it didn't happen." This was the defense throughout the trial. The defense never argued or suggested that defendant somehow accidentally, mistakenly, or negligently hit the children with a belt. However, the State insists that the issue of accident or mistake ...