December 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Union County, No. 03-07-635I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Wefing, Parker and LeWinn.
Tried to a jury, defendant was convicted of one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), a crime of the first degree; one count of sexual assault, N.J.S.A. 2C:14-2(b), a crime of the second degree; and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a), a crime of the second degree. At sentencing, the trial court merged the second-degree sexual assault conviction into the first-degree aggravated sexual assault conviction and sentenced defendant to fifteen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also sentenced defendant to a consecutive seven-year term, with no period of parole ineligibility, for the endangering conviction. Fines and penalties were assessed, and defendant was directed to comply with the provisions of Megan's Law. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's victim was his daughter V. In March 2003, when V. was five years old, she was watching television with her grandmother, Z. Z. thought the program had sexual content that was inappropriate for a child, and she reached for the remote control to change the channel. V. stopped her and told her grandmother not to change the channel, adding, "My daddy does that to me." Z. questioned her granddaughter, and V. explained in detail her father's conduct towards her. When V.'s mother S. (Z.'s daughter) returned, Z. told her what V. had told Z. S. questioned her daughter, and V. explained what her father had done.
V. had been born in New Jersey, and sometime after her birth the family had moved to Florida and then to Georgia, before returning to New Jersey. In telling her mother what had happened, V. distinguished between incidents which had occurred "in the big house," that is, in Georgia, and those which had occurred in "the new house," that is, in New Jersey. At the time she revealed the abuse, V.'s parents were separated and S., V., her sister T. and her half-brother C. were all living with S.'s sister's family, and Z., in Elizabeth.
The following day, V., her mother and her grandmother went to the police and reported what had occurred. V. was interviewed on videotape by Detective Mary McKinlay of the Child Advocacy Center of the prosecutor's office. She repeated what she had told her grandmother and mother and, using anatomically correct dolls, demonstrated what defendant had done to her.
In June 2003 V. was again interviewed on videotape. The purpose of this second interview was to clarify the time frame of when the abusive acts occurred and where they occurred. V. could not provide an address but did identify pictures of the house in Georgia and the house in New Jersey in which she was abused.
In July 2003 defendant was indicted for one count each of aggravated sexual assault, sexual assault and endangering the welfare of a child. The indictment placed the acts as having occurred between June 3, 2002, and February 17, 2003, in Elizabeth. Defendant was released on bail, one of the conditions of which was that he have no contact with V.
Some time after V. reported this abuse, S. moved the family from Z.'s home in Elizabeth to another residence in Roselle, which had been purchased by S.'s sister. S. also permitted defendant to return to the family, contrary to one of the conditions of his bail. S. also told the children not to tell anyone that defendant was living there. If anyone visited, defendant would hide.
Defendant and S. pressured V. to recant her allegations.
S. repeatedly told V. that she had to say that defendant had not done anything to her "because then we're gonna to lose daddy." Eventually, S. took V. to the prosecutor's office where she was again interviewed on videotape. This time, V. told the detectives that her previous statement had been a lie, that defendant had not done anything to her and that she had dreamt everything.
Z. was suspicious that defendant had returned to the family because S. would not permit Z. to visit. In July 2004, she asked her own sister to drive her to the house in Roselle, picking a day when she knew S. would not be home. She took with her the key to the house and a camera. She approached the house, leaving her sister in the car with the camera. She put the key in the door when defendant opened it. He walked out and Z.'s sister snapped a series of pictures of him leaving.
V. and her sister were in the house and told Z. they were scheduled to return to Georgia in three days. Z. and her sister took the children to the nearest office of the Division of Youth and Family Services ("DYFS") and explained the situation. As a result of DYFS's involvement, custody of V. and T. was transferred to Z. Defendant, S. and C. moved to Georgia.
After several months in Georgia, S. evidently had second thoughts about what she had done to her daughter. She returned to New Jersey and went to the prosecutor's office. She said she had lied about V. recanting her allegations and admitted that V. had always maintained that defendant had abused her.
During the course of the trial, V., who was then seven years old, testified to abuse at the hands of defendant that had occurred in Georgia as well as in New Jersey. Defendant objected to this testimony as inadmissible under N.J.R.E. 404(b). The trial court admitted it as res gestae. As we noted at the outset, the jury found defendant guilty on all three counts.
On appeal, defendant raises the following arguments:
THE TRIAL COURT IMPROPERLY ADMITTED PREJUDICIAL OTHER CRIMES EVIDENCE UNDER THE GUISE OF RES GESTAE TESTIMONY; BECAUSE IT DID SO, THE COURT ALSO FAILED TO GIVE THE APPROPRIATE LIMITING INSTRUCTION.
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S HIGHLY IMPROPER SUMMATION, IN WHICH SHE VOUCHED FOR THE CREDIBILITY OF THE VICTIM AND CONTRASTED HER WITH DEFENDANT, WHO HAD A "MOTIVE TO LIE."
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY FAILING TO ADEQUATELY INSTRUCT THE JURY ON ITS OBLIGATION TO FIND BEYOND A REASONABLE DOUBT THAT AT LEAST ONE OF THE SEXUAL ASSAULTS HAD OCCURRED IN NEW JERSEY (PARTIALLY RAISED BELOW).
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FIFTEEN-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION AND A SEVEN-YEAR TERM ON HIS ENDANGERING CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT THESE SENTENCES.
The indictment in this case charged defendant with sexually abusing V. in Elizabeth between June 3, 2002, and February 17, 2003. It was undisputed that the family lived in Georgia for part of that time, from June 3, 2002, to December 31, 2002. Prior to opening statements, defense counsel raised with the trial court the issue of whether and to what extent the prosecution could elicit testimony as to any acts which may have occurred in Georgia as opposed to New Jersey. Defense counsel focused his argument on jurisdiction: that defendant could not be tried and convicted in New Jersey for criminal acts that did not occur within the State. State v. Denofa, 187 N.J. 24, 35 (2006). During the course of the argument, defense counsel stated:
But it's one thing to say well, it's a course of conduct that began at a period of time outside the time frame of the indictment. But later indictment alleges a time frame when the family is not even living in the State of New Jersey, and I don't know if this jury is going to understand that Georgia references are simply relative to quality and character. But if they find that something happened in Georgia during a period of time from the starting date of the indictment which they have no jurisdiction -- I don't want them to convict my client potentially based upon a period of time in which they have no jurisdiction to convict him if they're living in Georgia on July the 15th and they find that he did something on July the 15th, they don't have the authority to convict him. And I think that's the confusion in this case.
After hearing the argument of counsel, the trial court analyzed the issue in terms of both N.J.R.E. 404(b) and res gestae and concluded the testimony would be admissible under either theory. It ultimately determined, however, that testimony of defendant's alleged conduct in Georgia would be admissible as res gestae, thus obviating the need for a limiting instruction. State v. Kemp, 195 N.J. 136, 160 (2008).
According to the trial court, which was well acquainted with the proposed testimony having presided over a number of N.J.R.E. 104 hearings in advance of trial, V. was unable to state that a particular act of abuse occurred in New Jersey as opposed to having occurred in Georgia. The trial court considered V.'s testimony to consist of a "chain of facts so intimately connected that the whole must be heard in order to interpret its several parts." State v. L.P., 338 N.J. Super. 227, 241 (App. Div.) (Wefing, J., concurring) (quoting State v. Whitley, 245 N.E.2d 232 (Ohio Ct. App. 1969)), certif. denied, 170 N.J. 205 (2001).
After the trial court's ruling, defense counsel stated:
I hope the court will also instruct the jury that if they decide that the act or acts which are worthy of conviction took place in the state of Georgia, they cannot convict my client solely on what took place in the state of Georgia because they have no jurisdiction to do so.
Because the indictment says between X and Y dates in the City of Elizabeth in the County of Union. So I don't want -- point of my argument is I don't want them to think that they can convict him of substantive acts that took place in the state of Georgia if they take place within the time frame alleged in the indictment because they lack jurisdiction to do so. That was the point I was making.
Defendant now argues that the trial court erred. He notes in his brief the extensive criticism that res gestae has received from commentators and urges that we abandon it. He contends that at the very least the trial court should have considered the matter through the lens of N.J.R.E. 404(b). He contends that viewed in that manner, the evidence should have been excluded as unduly prejudicial or, at the very least, the trial court should have given a limiting instruction.
As an intermediate court, however, we are unable to set aside the doctrine of res gestae, particularly in light of the fact that the Supreme Court has just recently declined to do so, even in the face of certain members urging such a course. State v. Barden, 195 N.J. 375 (2008); Kemp, supra, 195 N.J. 136. We confine our analysis to the question at hand, whether defendant was deprived of a fair trial as a result of the jury having heard this testimony.
We have carefully reviewed the trial transcripts in this matter, and we are satisfied that defendant's trial was entirely fair to him. As the trial court noted, the combination of V.'s young age and the fact that her family moved a number of times, within New Jersey and to Georgia and Florida, made it impossible for her to state which acts of abuse occurred at which location. As we noted in L.P., supra, "[y]oung children often 'do not think in terms of dates or time spans.'" 338 N.J. Super. at 239 (quoting In re K.A.W., 104 N.J. 112, 118 (1986)). That is particularly true with a child as young as V., who could not even provide the addresses for the various houses in New Jersey in which she had lived.
"Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).
Here, defendant's expressed concern was that the jury might improperly convict him on the basis of conduct which it found occurred in Georgia. The trial court, however, adequately dealt with that expressed concern, telling the jury both when the testimony was presented and again in its final charge, that it could not find defendant guilty on the basis of conduct in Georgia and that it could only find defendant guilty if it were satisfied that the State had proven beyond a reasonable doubt that at least one of the acts of sexual abuse occurred in New Jersey.
Our conclusion in this regard is fortified by the indictment returned against defendant. He was not charged with multiple acts of sexual abuse; the jury was called upon to determine only if defendant abused V. once or not at all.
Defendant's next argument is that the prosecutor's summation was improper and deprived him of his right to a fair trial. At several points within her summation, the prosecutor told the jury that V. was credible and that defendant was the only witness who testified who had a motive to lie. Defendant objected to the latter remark, and the trial court agreed to give a curative instruction to the effect that it was up to the jury to decide which of the witnesses had a motive to lie. The trial court did so at the outset of its charge.
Defendant argues that the prosecutor in her summation improperly vouched for V.'s credibility. Prosecutors may not vouch for the credibility of the witnesses they have presented. State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005). They are, however, allowed to point to evidence presented during the trial which would support the credibility of a witness.
They are also allowed to respond to arguments raised by a defendant in his summation. State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003).
We have reviewed the prosecutor's summation in light of defendant's argument and find nothing that would warrant a reversal of his conviction. The prosecutor's remarks must be viewed in the context of the entire trial, particularly in light of defendant's summation, which was an unremitting challenge to V.'s credibility.
Defendant's next argument is that the jury instructions were inadequate with respect to the question of jurisdiction. Again, we disagree. The trial court addressed the issue on several occasions. At the end of S.'s testimony, the trial court gave the following instruction to the jury:
I want to say one thing to the jury right now if I could. The defendant on trial is presumed to be innocent and unless each and every essential element of the offense charged is proved beyond a reasonable doubt that's the State's proofs, the State's burden.
Now you have been given testimony concerning certain acts which allegedly occurred. When you consider whether or not those acts occurred and whether they satisfy you beyond a reasonable doubt as to each and every essential element of the crime charged as set forth in the indictment, you are only to consider those acts which occurred in New Jersey, not those acts which occurred in the state of Georgia to satisfy that burden, and I'll give this to you in much greater length at the end of the case, but I want you to understand that. The reason why I'm saying to you now is that there's been some discussion; you probably figure why are they discussing these issues concerning New Jersey and Georgia. That is part of the reason.
The trial court repeated this principle in its final charge, telling the jury that it was "only to consider those acts which occurred in New Jersey not those acts which allegedly occurred in Georgia . . . ."
In our judgment, the court's instructions were clear, and we presume the jury followed them. State v. Burns, 192 N.J. 312, 335 (2007).
Defendant's last two arguments revolve around his sentence. There was no impropriety in the trial court imposing a consecutive sentence for the conviction for endangering the welfare of a child. State v. Miller, 108 N.J. 112 (1987). The defendant in that case was convicted of aggravated sexual assault and endangering the welfare of a child, having sexually assaulted his daughter. Id. at 114. The trial court imposed consecutive sentences; this court reversed, finding that the two crimes merged. Ibid. The Supreme Court, however, reversed this court, noting that "the crime of endangering the welfare of a child is aimed not only at specific conduct but also at the violation of the duty that a parent owes to a child." Id. at 118-19. The violation of that duty warrants a separate sentence.
In Miller, the Court remanded the matter to the trial court for re-sentencing because the trial court had not stated its reasons for imposing a consecutive sentence. Here, the trial court squarely addressed the issue, analyzed it in light of Miller and stated its reasons why it considered a consecutive sentence appropriate.
We perceive no merit to defendant's argument that his sentence is manifestly excessive. The trial court imposed a mid-range sentence for each conviction. Nothing would warrant a lesser sentence.
Defendant's convictions and sentence are affirmed.
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