January 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-04-571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Parrillo and Messano.
Following a jury trial, defendant R.N. was convicted of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and acquitted of second-degree sexual assault, N.J.S.A. 2C:14-2c, and fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b. On appeal, defendant raises the following issues:
POINT ONE THE COURT ABUSED ITS DISCRETION BY ALLOWING [M.S.] TO TESTIFY AS A FRESH COMPLAINT WITNESS BECAUSE THE ACCUSER'S COMPLAINT WAS NOT MADE IN A REASONABLE TIME, IT WAS NOT CREDIBLE, AND [M.S.] WAS ALLOWED TO TESTIFY AS TO ALL OF THE PREJUDICIAL DETAILS OF THE COMPLAINT.
POINT TWO THE COURT'S FAILURE TO ISSUE AN EVIDENTIAL DECISION, CONDUCT A[N] N.J.R.E. 104 HEARING[,] AND GIVE A LIMITING INSTRUCTION TO THE JURY ON OTHER-CRIMES EVIDENCE WAS PLAIN ERROR REQUIRING [DEFENDANT'S] CONVICTION TO BE REVERSED.*fn1
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The State's first witness was Detective James Muir who had been employed with the Woodbridge police department for twenty-four years and assigned to the criminal investigations unit for nine years. On January 6, 2006, Muir responded to 129 Summit Avenue where defendant lived with his wife, and her son, M.S. Muir was advised by other officers at the scene that defendant had called the police complaining that M.S. had assaulted him. Muir was also told there "might also be some other sexual assault involved in this also." He decided to bring everyone to police headquarters for further questioning. In addition, M.H., the girlfriend of M.S. and the alleged victim of the sexual assault, was contacted and brought to headquarters. Muir took a taped statement from both M.H. and M.S.
Muir testified that M.H. claimed defendant had sexually assaulted her in late July or early August 2005, when she was fourteen-years old. Although M.H. was unable to provide the exact date of the incident, Muir testified that this was not unusual nor was it unusual for a minor to delay reporting a sexual incident. M.H. claimed the assault took place at a house on George Street owned by defendant's mother. Defendant denied the allegations.
M.H. testified that at the time of the incident, she lived with her grandmother, who was also her legal guardian, had just finished eighth grade, and was dating M.S. During the summer of 2005, she would frequently "hang out" at defendant's house in the company of M.S., defendant, and his wife; eat dinner; and celebrate holidays with them. M.S. referred to defendant as "dad" and thought of him and his wife as her parents.
One day in the summer of 2005, defendant took M.H. to his mother's home on George Street. She was not at home at the time, but defendant intended to borrow her car upon her return, and, together with M.H., pick up M.S. from football practice. The house was defendant's childhood home, so he took M.H. upstairs to show her his bedroom that contained trophies he earned as a child. While in the bedroom, defendant told M.H. that he loved her. When she sat down on the bed, defendant sat next to her and put his hand on her leg. Defendant moved his hand up her skirt and, even though she protested, he pushed her back and put his fingers in her vagina. Defendant proceeded to "kiss in between her legs" under her skirt but over her underwear. Defendant left the room and went to the bathroom where M.H. saw him masturbating over the toilet. He asked her twice "to come help him with it," but she went downstairs and waited by the back door until defendant's mother returned home. When M.H. and defendant left together in the car, defendant grabbed the back of her neck and said "[Y]ou know, nothing happened."
After the incident, M.H. and defendant "acted as if nothing happened." She did not tell M.S. because she was scared. However, defendant became "more flirtatious after awhile," occasionally "hitt[ing] [her] butt as [she] walked past" him. In September 2005, she gave defendant an affectionate birthday card acknowledging that they had "grown closer than any biological father and daughter ever could." At Christmas, she gave defendant a card thanking him "for everything!!" She told him he would "always be [her] dad." M.H. testified that she expressed these sentiments in the cards to make it seem like nothing was wrong between her and defendant. She knew defendant and his wife were having marital problems and were separating. She thought that she would tell M.S. about the incident after that because defendant and M.S. would no longer be living together.
However, while talking to M.H. on the phone one night in January, M.S. asked her not to see defendant after the separation because defendant had become "so flirtatious" toward her. M.H. began to cry, hung up the phone, and text messaged M.S. telling him that defendant had "already [done] what . . . [M.S.] was talking about." When M.S. called her back, she told him the details.
On cross examination, M.H. acknowledged various inconsistencies between her grand jury testimony and her testimony at trial. She learned that after telling M.S. what happened, he physically assaulted defendant with a knife. M.H. testified that she had no one to confide in after defendant had assaulted her since she had not seen her parents for many years and was not close to her older sister. She admitted she did not save the text message to M.S. to show the police.*fn2
Prior to M.S. testifying, the judge conducted an N.J.R.E. 104 hearing to determine whether the statements M.H. made to him were admissible "fresh complaint" evidence. Outside the presence of the jury, M.S., who was sixteen at the time of the trial, testified that he and M.H. had a close relationship and frequently would confide in each other. During a telephone conversation in January 2006, he asked M.H. to stop contacting defendant after the separation, telling her, "I'm afraid you may be molested later on." This caused her to cry and hang up the phone. M.H. immediately sent him a text message telling him that defendant had held her down and inserted his fingers in her vagina at his mother's home during the summer. M.S. saved the text message and showed it to the police. In a subsequent conversation, M.H. told M.S. that defendant went into the bathroom and started masturbating.
After considering this testimony, the judge concluded that M.S. could testify as a fresh complaint witness, noting the evidence was admissible not to prove the truth of the statement, but for the purpose of demonstrating that M.H. eventually confided in somebody, that is that "the complaint was made." The judge cautioned the prosecutor that "[n]ot all the specificity comes in." The judge permitted M.S. to testify about the contents of the text message, i.e., that defendant had "shoved his fingers in her vagina, and held her down" and the later conversation regarding defendant's masturbation in the bathroom. M.S. then repeated his testimony before the jury.
During cross-examination, defense counsel asked M.S. if he remembered telling the police in his statement that "[M.H.] told you that [defendant] also gave her oral sex?" M.S. replied that he did. On re-direct, the prosecutor asked what M.H. had said "[defendant] did to her with his mouth." Over defendant's objection, the judge permitted M.S. to answer that defendant "was licking her vagina." The State rested after M.S.'s testimony.
Defendant's mother testified that she was raised in a traditional way and would never allow a male and female to be alone in her home together. On one occasion, she followed M.S. and M.H. upstairs in the house to "find out what they were doing up there," and made them come downstairs immediately. She denied ever keeping defendant's trophies in an upstairs bedroom.
Defendant, who was fifty years old at the time of trial, testified on his own behalf. He had been convicted of a crime on four prior occasions, twice for theft by deception and twice for drug offenses. In 1996, he was sentenced to three years in prison, served four months, and was released on probation.
He testified that on January 5, 2006, M.H. and M.S. were present at a birthday party defendant and his wife L.S.*fn3 were hosting at their home. M.H. pleaded with him to call her grandmother for permission to remain at the party, but defendant refused and M.H. went home. Later that night, defendant could hear M.S. pacing back and forth in his bedroom which was above defendant's. Defendant went upstairs but M.S. denied anything was wrong.
The night after the party, when defendant returned home from work, M.S. was visibly upset. Unexpectedly, he punched defendant on the side of the back and ran up the stairs yelling "you raped my girlfriend ten months ago." Defendant followed M.S. and tried to discuss the accusation, but M.S. resisted and they struggled. M.S. grabbed a knife from his bed and defendant retreated downstairs and called the police. When they responded, defendant told them what happened, including his stepson's accusation regarding M.H. After the police took statements from M.H. and M.S., defendant was arrested.
Defendant testified that L.S., M.S., M.H., and he would regularly have Sunday dinner at his mother's house during the summer of 2005; that he was never alone with M.H. in his mother's home; and that he had been alone with M.H. on twenty to thirty occasions to run errands and the like. Defendant denied all of M.H.'s claims regarding the sexual incident.
The final defense witness was Woodbridge police officer Thomas McGovern. He testified that he was called to defendant's home on the evening of January 6, 2006 to investigate a father/son dispute, not a sexual assault. He acknowledged that it was defendant who initially told him of M.H.'s allegation of a sexual assault.
After summations, the judge charged the jury and included a specific charge regarding the fresh complaint evidence, the propriety of which is not challenged on appeal. After a series of questions, the jury returned the verdicts we have referenced above.
Defendant argues that the judge mistakenly exercised her discretion by permitting M.S. to testify regarding M.H.'s statements to him. He contends the fresh complaint was "stale," having not been made for months after the actual events, that it was "not credible," and that M.S. was permitted to testify to specific details surrounding the alleged incident, well beyond that permissible under the fresh complaint exception to the hearsay rule. We find none of these arguments persuasive.
The judge admitted M.S.'s testimony as "theory number two" fresh complaint evidence, a reference to one commentator's discussion of this type of admissible hearsay. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2008). We recently restated the limited purpose of this type of fresh complaint evidence as follows:
[The] purpose is to allow the State to meet in advance the negative inference which would be drawn from the absence of evidence that the victim reported the incident to one to whom she would naturally turn for comfort and advice. Fresh complaint evidence is to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime. [State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006) (internal quotations omitted).]
Fresh complaint evidence of this nature is not authorized by N.J.R.E. 803(c)(2) because the complaint is "not made under the stress of excitement or before there was an opportunity to deliberate or fabricate." Biunno, supra, comment 2. Thus, the evidence is admissible even though there may be some delay between the actual sexual assault and the making of the complaint, as long as the delay is "reasonable." State v. Hill, 121 N.J. 150, 163 (1990). The length of any delay is only a factor to be considered in determining the weight given to the evidence. State v. Bethune, 232 N.J. Super. 532, 536 (App. Div. 1989), aff'd., 121 N.J. 137 (1990).
A substantial lapse of time may be "reasonable" given the youth of the victim and the "special vulnerability [of children] to being cajoled and coerced into remaining silent by their abusers." Bethune, supra, 121 N.J. at 143. We have also noted that frequently it is not until a child is free of "the aura of intimidation" that she will confide in someone. State v. L.P., 352 N.J. Super. 369, 384 (App. Div.), certif. denied, 174 N.J. 546 (2002). Thus, we have repeatedly permitted the admission of fresh complaint evidence of this nature even though the delay in reporting the assault was several months or even years. See R.E.B., supra, 385 N.J. Super. at 88 (two-year delay); L.P., supra, 352 N.J. Super. at 384 (delay of nearly one year); State v. Hummel, 132 N.J. Super. 412, 423 (App. Div.), certif. denied, 67 N.J. 102 (1975)(three-year delay).
In this case, M.H. testified that defendant told her "nothing happened" immediately after the incident, and that she was scared thereafter. She testified that defendant bought her gifts during the ensuing months, tried to maintain a normal relationship, but became overtly flirtatious with her. M.H. further testified that when she knew defendant and his wife were separating, and M.S. would no longer be living with defendant, she decided to tell M.S. what had occurred. When he expressed concern over defendant's flirtatious behavior, she became emotional, started crying, hung up the phone, and text-messaged M.S. about the incident that occurred months earlier. Given these circumstances, the trial judge did not mistakenly exercise her discretion in admitting the evidence simply because of the delay in time between the actual events and M.H.'s statements to M.S.
Defendant also contends that the judge permitted M.S. to testify too extensively as to the details of the incident. We acknowledge that fresh complaint evidence of this type should be limited to the general nature of the incident without the inclusion of unnecessary details. Hill, supra, 121 N.J. at 163; Bethune, supra, 121 N.J. at 146-47. We have said the "details of the offense should be confined to those minimally necessary to identify the subject matter of the victim's complaint." State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 588 (1988). However, where the jury is permitted to hear too much detail from the fresh complaint witness, the error is harmless if those details were properly testified to by another witness at trial. State v. Queen, 221 N.J. Super. 601, 608-09 (App. Div.), certif. denied, 110 N.J. 506 (1988).
Here, the judge permitted M.S. to testify about the contents of the text message and M.H.'s subsequent conversation with him in which she told him that she saw defendant masturbate in the bathroom. We do not find this testimony excessively detailed. M.S. testified about M.H.'s claim that defendant had kissed her in the vaginal area only after defense counsel questioned him about reporting that to the police. We are hard-pressed to see how that limited testimony serves as a basis for reversal. Moreover, M.H. testified at trial as to each and every element of the sexual encounter with defendant and was subjected to cross-examination about all of her claims. Thus, even if M.S.'s testimony was too detailed, the error was harmless.
Defendant's claim that M.H.'s fresh complaint was not "credible" is unavailing. We defer to the factual findings made by the trial judge as long as there is substantial, credible evidence in the record to support them. State v. Locurto, 157 N.J. 463, 470-75 (1999). There was ample evidence in the record for the judge to have determined that M.H.'s fresh complaint was credible prior to admitting the evidence before the jury, and we find no basis to disturb that ruling.
Defendant contends that the judge erred in permitting M.H. and M.S. to testify that defendant, after the incident, "rubb[ed], grabb[ed], or patt[ed] [M.H.'s] buttocks." He claims this was "other crimes evidence," N.J.R.E. 404(b), and it was "admitted without any evidentiary decision, or a[n] N.J.R.E. 104 hearing or any limiting instruction  to the jury." Defendant notes that he was acquitted of the substantive charges of sexual assault and criminal sexual contact, implying that the jury rejected M.H.'s version of the events. He further notes, however, that the jury asked two detailed questions while deliberating, both of which sought re-definition of "criminal sexual contact" as well as the testimony of M.S. and defendant regarding M.H. being "tapped on the ass."*fn4 Therefore, he argues that the jury could have found him guilty of child endangerment based upon this "other crimes evidence," and not the offenses actually charged in the indictment.
The State counters that M.H.'s testimony in this regard was not "other crimes evidence," but rather "details that paint[ed] a picture" of the events that "helped to explain why [M.H.] was frightened and . . . why [M.S.] was concerned" about defendant's behavior. It argues that the judge's charge made it clear that all the crimes charged in the indictment were alleged to have occurred during July or August 2005 in defendant's mother's home. Since defense counsel never objected to the testimony, we must evaluate whether it was both improper and "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
N.J.R.E. 404(b) does not apply to res gestae evidence, i.e., "'uncharged acts of misconduct that are components of the crime that is the subject of the trial.'" State v. Long, 173 N.J. 138, 161 (2002)(quoting State v. Martini, 131 N.J. 176, 241 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995)). Res gestae evidence is usually "evidence of conduct occurring 'during the same time frame as the crime charged in the indictment . . . [that] establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.'" State v. L.P., 338 N.J. Super. 227, 235 (App. Div.)(quoting State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995)(emphasis added), certif. denied, 170 N.J. 205 (2001). It has been noted, however, that "[s]pecial considerations [are] applicable to prosecutions of sexual assaults against children [that] may extend the time frame for permissible res gestae evidence[.]" Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2008).
For example, in L.P., supra, 338 N.J. Super. at 236, we considered whether evidence introduced by the State of "uncharged conduct," specifically earlier sexual assaults committed by defendant against the same victim "occur[ing] several years before the dates included in the indictment," was properly admitted as res gestae evidence. We concluded that "the testimony about the earliest attacks was critical to the jury's understanding of the facts and context of the crime. The jury was entitled to the whole picture in order to understand [the victim's] inability to disclose the assaults at an earlier age[.]" Id. at 239.
So, too, in this case, M.H.'s testimony regarding defendant's patting of her buttocks after the incident was critical to the jury's consideration of the evidence in at least two important ways. First, it supported M.H.'s assertion that she was scared and explained her reluctance to divulge what occurred earlier that summer to anyone. After all, to such a young girl, defendant's brazen conduct must have evidenced a self-assured confidence that their secret encounter would never become known to others and that indeed "nothing happened." Second, the conduct explained why both M.H. and M.S. independently reached the conclusion that defendant was becoming more flirtatious toward her. It was only when M.S. shared his observation of, and concern over, his stepfather's conduct that M.H. confided in him about the prior sexual incident.
Even if admissible as res gestae evidence, however, a court is required to engage in the weighing process required by N.J.R.E. 403--is the probative value of the evidence outweighed by its prejudicial effect? See Long, supra, 173 N.J. at 161 (noting further that balancing under Rule 403 is equivalent to the fourth prong of the Rule 404(b) analysis required under State v. Cofield, 127 N.J. 328 (1992)). Since there was no objection made below, the judge was denied the opportunity to examine the evidence in this light. We therefore consider the issue de novo. See State v. Lykes, 192 N.J. 519, 534-37 (2007).
"The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998). Although other crimes evidence must meet "a stringent standard for [its] admission[,] . . . our courts have not frequently excluded highly prejudicial evidence under the fourth prong of Cofield." Long, supra, 173 N.J. at 162. Here, the evidence regarding defendant's touching of M.H.'s buttocks after the sexual incident in the summer of 2005 was highly probative for the reasons set forth above, and it helped place M.H.'s and M.S.'s behavior in the proper context for the jury's consideration. See L.P., supra, 338 N.J. Super. at 240 (noting although testimony regarding earlier uncharged sexual assaults was "atypical res gestae evidence, it was essential . . . to explain the context of the crime and the victim's failure to complain"). We conclude that the probative value of the evidence at issue was not outweighed by its potential prejudicial effect, and the judge did not mistakenly exercise her discretion by permitting its admission.
Defendant argues the jury's verdict was inconsistent because he was convicted of endangering yet acquitted of the sexual assault and sexual contact charges which were supported by the same evidence to which the judge alluded when she defined the crime of endangering. Considered together with the jurors' questions, defendant contends that the jury may have reached its guilty verdict on the mistaken belief that any touching of M.H.'s buttocks was "sexual conduct," a necessary element of endangering as charged.*fn5
However, we are convinced that the testimony did not lead the jury astray. In her final instructions, the judge clearly and concisely limited the jury's consideration to the events that M.H. testified as having occurred during the summer of 2005 in defendant's mother's home. She defined the "sexual conduct" that would support a guilty finding of endangering as defendant's "penetration by the finger, and/or the kissing on the leg of [M.H.], and/or the touching of the leg of [M.H.], and/or the incident later . . . in the bathroom, where it's alleged . . . that there was  masturbation." We presume the jurors followed these instructions. State v. Nelson, 173 N.J. 417, 478 (2002).
Moreover, "a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). We have no doubt that there was sufficient evidence upon which the jury could find defendant guilty of endangering the welfare of M.H.