On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-07-1607.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Graves and Newman.
Defendant, J.V., was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c) (count one); second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count four). Counts one and two charged defendant with crimes against B.M.; counts three and four charged defendant with crimes against S.M. B.M. and S.M. were defendant's stepdaughters through his marriage to Y.R., their mother.
Tried to a jury, defendant was found guilty on counts one and two and not guilty on counts three and four. The trial judge granted the State's motion for extended term sentencing. The trial court sentenced defendant to thirty-years imprisonment with an eighty-five percent parole ineligibility term, pursuant to the No Early Release Act*fn1 (NERA). The court also imposed parole supervision for life, the applicable fines, and penalties. Counts one and two were merged for sentencing purposes. Defendant appeals. We affirm.
Y.R. began dating and cohabitating with defendant in 1996. The couple lived with Y.R.'s daughters, thirteen-year old S.M., eight-year old B.M., and infant K.S.
While living with Y.R. and her daughters, defendant observed B.M. and S.M. were staying out until 10:00 p.m. on school nights. Defendant began requiring the girls to be home by 7:00 p.m. and in bed by 9:00 p.m. Both girls argued with defendant about the curfews, and defendant recognized that he and S.M. did not "click." S.M. stated that she was not allowed to go anywhere except school activities.
According to S.M., when she was fifteen, defendant once sat on her bed while she laid on it, and he touched and rubbed her vagina over her clothes and bed covers. S.M. also testified that defendant entered the bathroom twice while she showered. In the first instance, defendant told S.M. that he wanted to show her how to shave herself and that he wanted to shave her. On the second occasion, defendant told S.M. that he wanted to show her how to shave herself, he wanted to shave her, and it was normal to do so. Defendant, fully-clothed, then entered the shower and hugged S.M. S.M. told defendant to get out, and he complied. S.M. was unclothed both times. Defendant denied these encounters occurred.
According to S.M., she reported the shower incidents to Y.R., but Y.R. did not believe her. Y.R. testified that S.M. told her that defendant tried touching her. Y.R. confronted defendant, but she said he denied the events took place, so Y.R. allowed defendant to remain in the house. Neither S.M. nor Y.R. contacted the police. S.M. stated that, shortly after these incidents, she informed her grandparents about the encounters with defendant and moved in with them in upstate New York.
S.M. explained that she did not call the police because she was moving away from defendant, her mother did not believe her, and she thought nothing would happen anyway.
Defendant's recollection differed from S.M.'s regarding her departure from the house. He recalled observing S.M. on the side of her cousin's house kissing a boy, and confronting her about it. S.M. struck defendant, and Y.R. eventually arrived, intervened, and argued with S.M. The next morning, the police department called S.M. and Y.R. down to the station, and S.M. subsequently moved to her grandparents' house. Defendant explained that S.M. moved away because she grew tired of defendant "giving her rules."
In 1999, Y.R. married defendant. As B.M. grew older, defendant imposed a telephone curfew of 9:00 p.m. upon her, in addition to her other curfews. B.M. described defendant as being "very strict." B.M. stated she could be punished for "[e]very little, any possible thing." Y.R. remarked that defendant did not want B.M. "going to places with her friends at all. He was controlling. He always wanted to put the rules down."
B.M. claimed that she was fourteen when defendant found her playing cards on Y.R. and defendant's bed. Defendant taught her how to play strip poker. They then played strip poker, and the game concluded with B.M. fully undressed and defendant wearing some clothes. Defendant denied this occurred.
B.M. remembered that a few days after the card game, defendant joined B.M., in Y.R. and defendant's bedroom, while she was using the computer. Y.R. was not home. Defendant instructed her to close the door and lay next to him on the bed. Defendant "ended up being on top" of her, placed a pillow above her body to block her view, and engaged in vaginal intercourse with her on the bed. B.M. cried, walked out of the room, and then showered. Shortly thereafter, defendant walked into B.M.'s room and promised her that he would not "do it again." Later that day, B.M. wrote a note to her mother about the card game and what happened earlier in the day, and she gave it to Y.R.
Y.R. confronted defendant and yelled at him in the bedroom. Defendant responded and denied touching and playing card games with B.M. Afterwards, defendant entered B.M.'s room and apologized. The next day, Y.R. told B.M. that defendant swore he would never have intercourse again with her. Defendant continued to live in the house.
Several days later, B.M. was removed from cheerleading practice to see a school counselor, a prosecutor, a police officer, a detective, and a DYFS worker, who asked her whether her stepfather had done anything "he wasn't supposed to." B.M. denied that her stepfather had done anything. A few days later, a DYFS worker came to her home and questioned B.M. and K.S. separately. These investigations occurred because B.M. had spoken to one of her aunts about defendant, who in turn called DYFS. At the time, B.M. again denied that defendant had touched her in an uncomfortable manner. B.M. and Y.R. explained that they had denied anything had occurred because they were scared that they would be separated.
B.M. stated that the following year, in 2004, defendant required her to obtain his permission to go to her friends' houses. Most of the time, defendant granted B.M. permission on the condition that they have vaginal intercourse. B.M. estimated that, starting in March of 2004, they had vaginal intercourse ten or eleven times. Each time defendant and B.M. engaged in vaginal intercourse, she would be on her hands and knees on the bed, he would approach her from behind, and they would never kiss. B.M. believed that defendant used a condom each time.
On April 8, 2005, B.M. asked defendant for permission to sleep over at a friend's house. B.M. testified that defendant wanted to have vaginal intercourse with B.M. before she went to her friend's house, but they did not because Y.R. was home. They agreed to have vaginal intercourse another time, and B.M. slept over her friend's house.
The next week, B.M. asked defendant if she could go to another friend's house after school on April 18, 2005. Defendant granted her permission but said that she owed him double for the April 8 sleep over and for this grant of permission. On April 18, 2005, B.M. came home from school and had vaginal intercourse with defendant. Because B.M. owed defendant double, she told defendant she was ready for him to perform oral sex on her. Defendant performed oral sex on B.M. Defendant then drove B.M. to her friend's house and later drove her back home.
Defendant denied sexually assaulting B.M. A former employer of defendant claimed that defendant had been at his home working on his yard from approximately 8:30 a.m. until 5:00 p.m. on April 18, 2005. The employer appeared confused on dates when asked when defendant last did some work for him. Defendant testified that he was not at home on April 18 when B.M. got home from school and that he did not drive her to her friend's house.
After returning home, B.M. called two friends, M.R. and L.P., and told them about how defendant forced her to have vaginal intercourse to gain permission to leave the house. M.R. told his mother, G.R., and they drove to defendant's house.
M.R., G.R., B.M., and Y.R. then drove to a store's parking lot. M.R. and G.R. entered the store and left Y.R. and B.M. in the car. B.M. told Y.R. that defendant was touching her and having vaginal intercourse with her. When Y.R. and B.M. returned home, defendant was not there. When defendant arrived home, Y.R. struck defendant and asked him "what have you been doing to [B.M.]?" Following an argument between Y.R. and defendant, defendant left the house.
Defendant returned to the house on April 21, 2005, to attend a family wedding because Y.R. did not want her mother to know what happened. After the wedding, defendant resumed living in the house.
On April 27, 2005, B.M. began crying in class. A friend consoled B.M., and B.M. told her what had happened between her and defendant. B.M. then told her Spanish teacher that she had been sexually assaulted by her stepfather. The teacher took B.M. to the principal's office, and both DYFS and the police were contacted. The teacher accompanied B.M. to the police station, where B.M. gave a statement to the police about the sexual assaults. At the police station, a DYFS worker met with B.M.
After taking a statement from the teacher, Detective Michael Bonanno sent a patrol officer to defendant's residence to bring him to the Neptune Police Station. Before speaking with defendant, Detective Bonanno read defendant his Miranda*fn2 rights. Detective Bonanno instructed defendant to write his initials next to each warning, signifying that defendant understood each one; defendant complied with this instruction. Underneath a pre-printed Miranda waiver on the form, defendant signed his name. Detective Sergeant Michael Emmons also witnessed defendant sign and initial the form.
Detective Bonanno conducted a pre-statement interview with defendant by asking defendant why he thought he was there. Defendant answered that he did not know. Detective Bonanno then informed defendant of the allegations B.M. made to her teacher. According to Detective Bonanno, defendant denied everything at first, but defendant eventually opened up and admitted to certain things, such as playing strip poker with B.M. when she was fourteen and once having intimate relations with B.M.
Detective Bonanno claimed defendant then gave his statement, which was typed by a secretary. Detective Bonanno explained that the statement consisted of defendant giving a narrative and the police officers following up with questions. After completing the typed statement in accordance with the Monmouth County Prosecutor's Office Guidelines, defendant was videotaped reciting his answers in the statement to the questions read by Detective Bonanno.
In the statement, defendant answered that the statement was made voluntarily and "without promise of hope or reward, without fear or threat of physical harm, and without coercion or duress." Defendant confessed to playing strip poker with B.M. to the extent that they were in their "under clothes." Defendant admitted that B.M. would agree to intercourse with defendant so he would "let her out" of the house to see friends or to sleep over a friend's house. Defendant admitted this happened about ten times. Defendant said that sometimes B.M. would instant message defendant when they were on computers in different rooms, asking if Y.R. was asleep. If Y.R. was sleeping, defendant and B.M. would meet in the living room or B.M.'s bedroom to have sex or occasionally "wrestle . . . and grab each other" and make plans to have sex later in the evening. In his statement and at trial, defendant described his screen name as "Iloveto88," and defendant noted eighty-eight as B.M.'s birth year. Defendant denied that he ever touched K.S., B.M. and S.M.'s younger sister. Defendant conceded the last time he had vaginal intercourse with B.M. was April 18, 2005, at about 3:00 p.m. Defendant stated that on another occasion, he and B.M. "started playing around. She started grabbing me in my privates and I grabbed her in her privates above the clothes." Defendant also stated he performed oral sex on B.M. once. Lastly, defendant answered that he was treated fairly by the members of the Neptune Township Police Department. Defendant's signatures on the statement were recorded on videotape. The statement was completed by 8:00 p.m., and the videotape was completed at 8:30 p.m.
Defendant denied providing this information for the written statement. Instead, defendant insisted all of the statements' specifics "were provided to [defendant] by Detective Bonanno" on a piece of paper. In the pre-trial Miranda hearing, defendant testified that the paper Detective Bonanno gave him contained only the allegations that defendant had engaged in sexual intercourse with B.M. on April 18, 2005. At trial, defendant denied the conduct specified in the statement. Defendant maintained he signed the statement because he was offered to be released on his own recognizance from the police station by Detective Bonanno. Detective Bonanno claimed that he was unaware of the conduct specified in the statement until defendant gave his statement. Detective Bonanno denied that he nor any police officer promised defendant that defendant would be released on his recognizance.
Afterwards, Detective Bonanno took Y.R.'s statement, at 9:25 p.m., and then B.M.'s statement, at 10:30 p.m. Days later, Detective Bonanno took statements from two of B.M.'s friends and S.M. S.M. provided Detective Bonanno with a statement that included the sexual misconduct involving defendant and S.M.
Defendant explained that B.M. and S.M. fabricated their accusations against him because they did not like that he, unlike their mother, disciplined them and imposed curfews and rules upon them.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL WHEN IT REFUSED TO SEVER COUNTS 1 AND 2 FROM COUNTS 3 AND 4 SO THAT HE WOULD BE TRIED ON THE CHARGES THAT CONCERNED B.M. SEPARATE FROM THOSE CONCERNING S.M.
A. Intent and motive were not material issues genuinely in dispute.
B. Possible use of other crimes/bad acts evidence to rebut "vendetta defense."
C. Since the trial court never reviewed the uncorroborated statements of B.M. and S.M. at the Rule 104 hearing, it could not properly conclude that those statements constituted "clear and convincing" evidence as required by the Cofield test.
D. The trial court applied the wrong standard for determining whether the prejudicial value of the other crimes or bad acts evidence was outweighed by ...