May 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-01-0010-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Collester and Graves.
Tried to a jury, defendant T.M. was convicted of the following criminal offenses: first-degree aggravated sexual assault by committing an act or acts of sexual penetration upon J.F. between the dates of May 18, 1996 to June 28, 2001 when J.F. was less than 13 years old, contrary to N.J.S.A. 2C:14-2a (count one); first-degree aggravated sexual assault by committing an act or acts of sexual penetration upon J.F. between June 29, 2001 and May 18, 2002 when J.F. was less than 13 years old, contrary to N.J.S.A. 2C:14-2a (count two); first-degree aggravated sexual assault in that he committed an act or acts of sexual penetration upon J.F. between May 18, 2002 to December 30, 2002 when J.F. was l3 years old but less than 16 years old and defendant was a foster parent, a guardian or he stood in loco parentis within the household, contrary to N.J.S.A. 2C:14-2a (count three); second-degree sexual assault by committing an act or acts of sexual contact with J.F. between May 18, 1996 to June 28, 2001 when J.F. was under 13 years old and defendant was at least four years older, contrary to N.J.S.A. 2C:14-2b (count four); second-degree sexual assault in that defendant committed an act or acts of sexual contact with J.F. between June 29, 2001 and May 18, 2002 when J.F. was under the age of 13, contrary to N.J.S.A. 2C:14-2b (count five); second-degree endangering the welfare of a child when defendant had a legal duty or assumed the responsibility for J.F.'s care and engaged in sexual conduct that impaired or debauched J.F.'s morals, contrary to N.J.S.A. 2C:24-2a (count six); first-degree endangering the welfare of a child when defendant was a parent, guardian or person legally charged for the care of J.F. and caused J.F. to engage in prohibited sexual acts knowing they were being photographed, filmed or reproduced, contrary to N.J.S.A. 2C:24-4b(3) (count seven); and second-degree endangering the welfare of a child in that defendant knowingly photographed or filmed J.F. in a prohibited sexual act and knowingly used a computer to reproduce or reconstruct the image of J.F. in the prohibited sexual act, contrary to N.J.S.A. 2C:24-4b(4) (count eight).
On February 6, 2006, the trial judge sentenced defendant to twenty years in state prison, ten years without parole, on count one. Concurrent terms of twenty years subject to the eighty-five percent parole bar under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1, was imposed on counts two and three. A ten-year concurrent sentence with five years parole ineligibility was imposed on count four, and a ten-year concurrent term was imposed on count five. The court sentenced defendant to a ten-year consecutive term with five years parole ineligibility on count six. Defendant received a concurrent term of twenty years in prison with ten years parole ineligibility on count seven. Finally, on count eight defendant was sentenced to a ten-year concurrent term in prison with five years parole ineligibility. On March 16, 2006, the trial judge re-sentenced defendant to a ten-year term with five years parole ineligibility on count seven to be served consecutively to count one and concurrently with counts six and eight.
Based on the trial testimony, the salient facts are as follows. Jane F.*fn1 was born on May 18, 1989. After her parents divorced in 1991, Jane was placed in the residential custody of her mother, Sally F. Shortly after the divorce, Sally began dating the defendant. After a time, she moved in with him and took Jane with her. In 1993 or 1994 they moved into a house on Creek Road in Bricktown. During Sally's work hours from noon to 9 p.m., defendant would take charge of Jane. Jane testified that when she was seven or eight defendant came to her bedroom one night when her mother was not at home. He asked her to undress and then touched her breast area. At first defendant touched Jane infrequently, but the incidents soon escalated to once a week. He then began touching her vaginal area. At these times defendant told Jane that her doctor asked him to check her to make sure that she was all right.
In 1996 Sally gave birth to another daughter named Rebecca, and defendant was father to the child. A year or so later in 1997 to 1998 they moved across the street to a larger house, and the sexual abuse of Jane escalated. Defendant began to perform oral sex on Jane and rubbed his penis against her vagina while maintaining that Jane's doctor needed him to help Jane's "sickness."
In 1999 financial troubles caused the family to split up. Jane went to live with her father. Sally went to California with Rebecca, but they returned after a few months to live with defendant in South River. Jane continued to live with her father but spent every other weekend with her mother in defendant's house. Jane testified that defendant soon resumed sexually abusing her, which now included oral sex and sexual intercourse.
In the fall of 1999, Jane told her mother that defendant had been sexually abusing her. Sally confronted defendant, and he denied the allegations. Sally said she was unwilling to believe that defendant would abuse Jane so she decided to "let it go." As a result, defendant continued to abuse Jane by having sexual intercourse with her. Moreover, he used a digital camera to take post-coital photographs of Jane with close-ups of her vagina, telling her that he was sending the photographs to her doctor. At this time, Jane was about twelve or thirteen.
In December 2003, Jane was fourteen years old and in the eighth grade when she confided to Sandra, her classmate and best friend. About a month later Jane was at a restaurant with Sandra and Kate, a woman dating Sandra's father. During dinner Jane said that she had a friend who had been molested by defendant. When Kate asked Jane if defendant had molested her, Jane told her defendant had been abusing her since she was in the first grade. Kate informed Jane's father of the situation, and the Middlesex County Prosecutor's Office was advised on January 14, 2004.
The following day detectives went to the house occupied by defendant and Sally, and pursuant to a consent search, seized a computer and digital camera. At trial Investigator John Szilagyi from the Middlesex County Prosecutor's Office testified as an expert in computer forensics. He examined both the computer and the digital camera seized from defendant's residence. Nothing pornographic or evidential was found on the digital camera, but Szilagyi used special software to recover deleted information on the computer. He found twenty-nine photographs of J.F. in a virus file, and thirty more that had been deleted. He testified the images were created on December 16, 2003 and were deleted January 2, 2004. He said the photographs were not downloaded from the internet but were transferred from the digital camera to the computer using interface software. The photographs depicted a naked girl, some with her legs spread, others with the girl's knees over her head, and others in which the girl was holding her vagina open. One photograph showed an adult hand holding open the child's vagina. In her testimony, Jane identified herself as the naked girl in twenty photographs. She said the pictures were taken by defendant, and he told her the poses he wanted for each photograph.
Defendant testified on his own behalf and denied ever sexually abusing Jane or having any kind of sexual contact with her. He said that Jane never liked him. He also denied taking the nude photographs extracted from the computer and transferring them from the digital camera to the computer. He added that the camera and computer were accessible to everyone in the home.
Defendant appeals his convictions and sentence, asserting the following arguments:
POINT I - THE COURT ERRED IN ADMITTING [KATE'S] TESTIMONY AS FRESH-COMPLAINT EVIDENCE AND COMPOUNDED THAT ERROR BY FAILING TO PROVIDE THE JURY WITH ADEQUATE LIMITING INSTRUCTIONS ON THE USE OF FRESH-COMPLAINT EVIDENCE IN GENERAL. (Partially Raised Below.)
POINT II - COUNT SEVEN SHOULD HAVE BEEN DISMISSED AT THE END OF THE STATE'S CASE INSOFAR AS IT CHARGED A FIRST DEGREE OFFENSE. (Not Raised Below.)
POINT III - THE BASE SENTENCES IMPOSED ARE EXCESSIVE, AND UNCONSTITUTIONAL. (Not Raised Below.)
Following an in limine motion by defendant, Sally, Sandra, and Kate testified at a pre-trial hearing on the admissibility of their testimony as fresh-complaint witnesses. Following a hearing, defense counsel conceded that the testimony of Sally and Sandra was admissible. However, it was argued that Kate's testimony was cumulative and inadmissible. The trial judge found that Kate was a person to whom Jane would ordinarily turn for comfort and advice, that Kate's questions to Jane were not coercive and that Kate's fresh-complaint testimony was admissible.
Defendant argues first that Kate's fresh-complaint testimony at trial was cumulative and prejudicial by making it more likely that the jury would consider the testimony corroborative of Jane's testimony that she was sexually abused by defendant.
The fresh-complaint doctrine arose from the expectation that a woman would alert others if she had been sexually assaulted. State v. Hill, 121 N.J. 150, 157 (1990). Properly considered, fresh-complaint evidence may serve to negate any inference that the victim was not sexually assaulted because she did not immediately complain. Id. at 163-66. See also State v. R.E.B., 385 N.J. Super. 72, 88-89 (App. Div. 2006); State v. Williams, 377 N.J. Super. 130, 151 (App. Div.), certif. denied, 185 N.J. 297 (2005). While such testimony may not be offered as proof of the crime charged, it is admissible to ensure that the jury is not left with an erroneous impression that the alleged victim did not confide in a person who was a natural confidante from whom she could expect sympathy, solace, comfort, protection or advice. Moreover, while evidence of belated disclosure does not give rise to a presumption of fabrication, it may be considered a part of the totality of circumstances in assessing credibility. State v. P.H., 178 N.J. 378, 396-97 (2004). See also State v. Bethune, 121 N.J. 137, 148 (1990).
Defendant argues that once it is established that the alleged victim did in fact complain to an appropriate person, further fresh-complaint testimony is cumulative and prejudicial, particularly when the alleged victim is a child. Defendant points out that Sally acknowledged that Jane complained of defendant's sexual abuse to her, and Sandra, as Jane's best friend, testified that Jane made the same complaint two or three years later. Defendant contends that Kate's testimony should not have been admitted since the purpose of the fresh-complaint doctrine previously had been satisfied by testimony that she had complained to appropriate persons.
A trial court's evidentiary rulings are accorded substantial deference on appellate review. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). We will reverse only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). Similarly, the question of limiting witnesses requires the exercise of sound judicial discretion by the trial judge in light of the factual circumstances. State v. Mucci, 25 N.J. 423, 433 (1957). Here the trial judge found that Jane considered Kate a person in whom she would be expected to confide about being sexually abused. There is substantial evidence in the record to support this finding. Therefore, the issue is whether Kate's testimony that Jane confided in her was cumulative so as to improperly prejudice defendant.
In Hill, supra, guidance was given by our Supreme Court on the question of cumulative fresh-complaint evidence.
[T]he trial court must first determine whether the testimony fulfills the requirement of the fresh-complaint rule. If so, then the trial court should assess, in light of the rule's narrow purpose of negating inferences that the victim had failed to complain, whether repeated testimony of the victim's complaint is irrelevant or prejudicial to the defendant.
There may be instances in which the trial court may find no prejudice from duplicative fresh-complaint testimony. That may occur when the victim complained at various times to different people, or when so much other evidence exists that duplicative testimony is unlikely to tip the scales. Yet, in close cases in which the victim's complaint has already been once established and it appears that repeated fresh-complaint testimony would leave the jury with the impression that the State has gathered a greater number of witnesses than the defense, the trial court may properly exercise its discretion and exclude the testimony.
[121 N.J. at 169-70.]
In the instant case, the fresh-complaint testimony of each of the three witnesses related to different periods when Jane maintained she was sexually abused by defendant. In these circumstances, the probative value of Kate's testimony exceeded its potential prejudicial effect. Furthermore, this is not a close case. There was powerful corroboration of Jane's testimony by photographs found on the computer used by defendant. In light of the State's strong proofs, it can hardly be said that Kate's fresh-complaint testimony was sufficient to "tip the scales" for the jury to convict the defendant.
Defendant further argues that the trial judge's instructions as to the limited use of fresh-complaint evidence was insufficient. The trial judge followed the language of the Model Charge on fresh complaint, stating:
Now, the law recognizes that stereotypes about sexual assault complaints may lead you to question . . . [Jane's] credibility based on the fact that she did not complain about the alleged abuse sooner. You may not automatically conclude that her testimony is untruthful based on her silence or delay in disclosure. Rather, you may consider the silence or delay in disclosing along with all the other evidence including the explanation for her silence and delay in the disclosure and then you are to decide how much weight to afford that testimony.
Since no objection was taken to the charge, the matter is to be reviewed under the plain error standard; that is, whether there was a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Since correct jury charges are essential to a fair trial, erroneous instructions are ordinarily presumed to be plain error and are almost invariably considered "poor candidates for rehabilitation under the harmless philosophy." State v. Simon, 79 N.J. 191, 206 (1979).
In instructing the jury on fresh-complaint testimony, the trial judge must indicate that the victim's delay in reporting or her silence could be considered in assessing her credibility, but the silence or delay, in and of itself, is not inconsistent with a claim of abuse. P.H., supra, 173 N.J. at 396-97. The court must also clarify that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault but merely dispels the inference that the victim was silent. Bethune, supra, 121 N.J. at 148.
Plain or harmful error in the charge will be determined by consideration of the entire charge and the context of the alleged error. State v. Torres, 183 N.J. 554, 564 (2005). The State acknowledges that while the charge could be deemed "less than perfect," any infirmity was not clearly capable of producing an unjust result. We concur. The instruction was sufficient to advise the jury that the evidence of the disclosures by Jane to her mother, classmate and to Kate were to be considered in the context of other evidence including her explanation for her silence and delay in reporting sexual abuse by defendant. Furthermore, as we have noted, there was powerful evidence corroborating Jane's testimony in the photographs found in the deleted files of computer used by defendant. Therefore, we find that the court's instruction did not have the clear capacity to bring about an unjust result and was not plain error mandating a reversal.
Defendant's next argument focuses on count seven of the indictment which charges the first-degree crime of causing or permitting a child to engage in prohibited sexual acts if the person knows or intends that the act maybe photographed or reproduced in any manner and is "a parent, guardian or other person legally charged with the care and custody of the child." In State v. McAllister, 394 N.J. Super. 571 (App. Div. 2007), decided after the trial of this case, the defendant was the live-in boyfriend of the victim's mother, and had a de facto parental relationship with the victim. We held that only a person who had been assigned responsibility for the care and custody of a child by a court or public agency could be found "legally charged" with the child's care or custody.
The State argues that McAllister is distinguishable because the defendant lived with Jane and her mother for eight years and should be considered her "parent." There is no substance to this argument. There certainly was no de jure parental relationship, and the evidence does not establish a de facto relationship of parent and child. While Jane may have lived with her mother and defendant for about eight years, she visited her natural father on a regular basis and went to live with him after 1999. Defendant was the live-in boyfriend who babysat for Jane and assumed responsibility for her care when Sally was working. We agree with the decision in McAllister and hold that defendant cannot be legally convicted of the elevated offense under N.J.S.A. 2C:24-4b(3). Accordingly, the conviction for count seven of the indictment must be vacated.
The last issue raised by defendant relates to his sentence. After consideration of defendant's arguments, we find that the sentence was manifestly proper under the circumstances and the imposition of consecutive sentences did not constitute an abuse of discretion since the prohibited sexual activity in count one and count seven are independent of each other. State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). However, in light of our determination that count seven constitutes a second-degree rather than a first-degree offense, we must remand for re-sentencing.
Affirmed in part. Reversed in part. Remanded for re-sentencing.