March 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0662-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant K.S. appeals from an amended judgment of conviction of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(1), on which a sentence of thirteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, was imposed; second-degree sexual assault of a victim under thirteen years contrary to N.J.S.A. 2C:14-2b, merged for sentencing purposes into the first-degree offense; and third-degree endangering the welfare of a child in his custody contrary to N.J.S.A. 2C:24-4a, on which a concurrent sentence of seven years was imposed. We affirm.
Defendant and V.A., the victim's biological parents, had a sporadic relationship but were residing together on November 29, 2004.*fn1 The victim was nearly six years old at the time. Defendant and V.A. had been living apart until 2003 when V.A. allowed him to return to her one-bedroom apartment because he had nowhere else to stay. The victim slept in a bunk bed in the living room. Her fifteen-year-old brother, who was living with his maternal grandmother, shared the bunk bed when he came to visit.
Defendant's relationship with his young daughter was troubled. From the beginning, he told the victim to call him by his first name rather than "Dad." She did so because she did not care for him. V.A. described defendant's attitude towards the victim as "cold" and asserted that he was rough with his young daughter. By all accounts, defendant was the family's disciplinarian. He would not "put up with [the victim's] antics" and was stricter than V.A., sometimes spanking the victim when she misbehaved. The victim testified that she was not happy when defendant moved into the apartment and did not like having him around.
Typically, defendant picked the victim up after school ended at 2:35 p.m. Under normal circumstances, defendant would bring the victim to her grandmother's house at 4:00 p.m., because V.A. worked the 11:00 a.m. to 7:00 p.m. shift at a nursing home. However, on November 29, the maternal grandmother was not available to watch the victim. Defendant called V.A. and offered to watch their daughter until V.A. came home from work that evening. Although defendant did not usually watch the victim, he had done so for brief periods of time in the past when V.A. ran errands.
After defendant picked the victim up from school that day, she told him that she did not have school the next day, which was not true. When defendant caught the victim lying, he became angry and told the victim that she was not going to get the special birthday present he had promised her, getting her ears pierced and picking out her first set of earrings, which made her upset. This was not the first time that the victim had lied.
V.A. came home from work that night at 7:30 p.m. She found the victim doing her homework on the living-room floor and defendant in the kitchen eating. Defendant immediately asked V.A. for intercourse. Although it was unusual for defendant and V.A. to have sex when she returned home, it happened "[o]nce in a blue moon." They went into the bedroom and closed the door, leaving the victim on the floor in the living room.
When they were finished, V.A. took a shower and began getting a bath ready for the victim. While in the bathroom, the victim remarked that she "was tired of touching it." When V.A. inquired if she was tired of touching herself, the victim told her that she was tired of touching defendant's "private." Specifically, the victim told her mother that defendant had the victim "touch his private and taste it." The victim told her mother that defendant's "private" looked "like a squirrel tail." She also told V.A. that defendant put his mouth on her "private" and it hurt. When asked to explain, she pointed to her vagina.
At trial, the victim expanded upon what happened. She stated that when she and defendant arrived home from school, defendant asked her to go into the bedroom with him.*fn2 Defendant then took off the victim's skirt and underwear and then his own pants and underwear, leaving their shirts on.*fn3 The victim stated that defendant then licked her "private" and told her to lick his "private." Using anatomically correct dolls, the victim demonstrated what had happened for the jury. The victim testified that when they were done, defendant pulled up his pants and told her not to tell anyone, and she went to the living room and turned on the television.
After the victim told V.A. what had happened, V.A. became extremely upset and asked her daughter if she wanted her to confront defendant. The victim said yes, and so V.A. called defendant into the hallway and asked him if he had molested the victim. Defendant calmly denied the accusation and said that the victim was "just twisting things because he's always telling her not to let anybody touch her in any way[,] shape or form." V.A. then asked the victim if it had in fact happened; the victim replied "no."
Shortly after the confrontation, defendant went back to the bedroom and listened to music until he was picked up to go to his other daughter's house. V.A. questioned the victim again about whether the incident happened after defendant left, and the victim replied affirmatively. V.A. cooked dinner, gave the victim a bath, put her to bed, and then called a friend to discuss the incident. V.A.'s friend advised her to call the police, which V.A. did slightly after midnight.
When the police arrived, V.A. gave them the pajamas the victim had been wearing when V.A. came home from work along with the underwear that she had worn earlier.*fn4 The police then drove V.A. and the victim to the police precinct and then to the Union County Prosecutor's Child Advocacy Center (Advocacy Center). The Advocacy Center is a house that has been converted into an office and is more child-friendly than the prosecutor's office. The first floor consists of a children's interview room and a waiting area; the second floor is the detective division; and the third floor contains an office for the assistant prosecutor.
After the victim and V.A. arrived at around 3:00 a.m. on November 30, Detective Joseph Genna of the Union County Prosecutor's Office took the victim into the interview room and conducted a non-suggestive interview, which was videotaped and lasted about forty minutes. After the interview concluded, Genna took V.A.'s statement and then V.A. and the victim went home. Defendant called V.A. later that day to see if the victim needed to be picked up at school, but V.A. said she had not gone to school because she was not feeling well. Genna secured a warrant for defendant's arrest based on the information provided by the victim and her mother; the police arrested defendant around 9:50 p.m. that night at the victim's home. Defendant waived his Miranda*fn5 rights and gave a statement denying the allegations of sexual assault.
A few days later, the victim was referred to the Dorothy Hirsch Child Protection Center (Hirsch Center) in New Brunswick for a medical assessment. The victim was examined by Dr. Glad-ibel Medina, the clinical director for the pediatric outpatient clinic at Saint Peter's University Hospital and a consulting physician at the Hirsch Center. Dr. Medina met first with V.A. and the victim to introduce herself and explain the examination process. At trial, she described her role as allowing the family "to have the opportunity of a physical examination [of the victim] for the purpose of diagnosis and treatment of any abnormality found and I give them the opportunity to . . . ask any questions they may have and for us to refer them to counseling, if necessary."
After obtaining permission from both the victim and V.A., Dr. Medina conducted a full body examination of the victim, with a focus on the genitalia because the victim reported that her "private area" hurt when defendant was licking it. The exam was negative and Dr. Medina found no signs of trauma or sexually transmitted disease. Dr. Medina explained that based on the type of incident reported, she would not expect to find anything in the physical exam because "[u]sually there is no physical evidence" associated with cunnilingus. She further explained that the pain the victim reported as occurring during the incident was not uncommon. "Actually in a pre-pub[escent] child which is a child that has not gone through sexual development, the tissue between the . . . labia majora [is] very sensitive to the touch. . . . She gave a history it hurt when he was licking it. However, because of sensation not because of . . . injury."
Prior to trial, defendant filed an in limine motion to preclude the testimony of Dr. Medina as an expert witness or, alternatively, to limit her testimony to that of a fact witness. On March 3, 2006, the motion judge conducted a hearing on defendant's motion. The judge denied the motion and ruled that Dr. Medina's testimony was admissible expert testimony under the N.J.R.E. 803(c)(4) hearsay exception.
Defendant's first trial took place before the trial judge and a jury on March 15-17, 2006. The jury was unable to return a unanimous verdict, resulting in a mistrial. The matter was retried over five days between June 5 and June 15, 2006; this time the jury convicted defendant on all three counts.
Sentencing took place on October 13, 2006. The trial judge found aggravating factor nine*fn6 and mitigating factor seven*fn7 were applicable and equally weighted. She then sentenced defendant as described above. She ordered defendant to submit a DNA sample, granted him 681 days of jail credit, and imposed various applicable fees and costs.
The judge entered an amended judgment of conviction on November 1, 2006, reflecting her sentencing decision and also ordering defendant to be subject to community supervision for life. On January 3, 2007, the judge filed a second amended judgment of conviction, removing the community supervision and replacing it with parole supervision for life. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I -- DR. MEDINA'S OPINION TESTIMONY REGARDING [THE VICTIM'S] ALLEGATIONS OF SEXUAL ABUSE WAS INADMISSIBLE. IT IMPROPERLY BOLSTERED THE CREDIBILITY OF THE COMPLAINING WITNESS, AND DENIED [DEFENDANT] BOTH DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below)
A. The Trial Court Erred In Finding That [The Victim's] Allegations Of Abuse Were Statements For Medical Diagnosis Within The Meaning of N.J.R.E. 803(c)(4).
1. Dr. Medina's expert testimony was improperly admitted as [the victim] was not seeking treatment at the time of the discourse and Dr. Medina's primary purpose was forensic.
2. The subject matter of Dr. Medina's testimony was not outside the ken of the average juror.
B. Dr. Medina Exceeded The Permissible Bounds Of Expert Testimony By Vouching For [The Victim's] Credibility.
C. Dr. Medina's Inadmissible Testimony Was A Bedrock Of The State's Inappropriate Arguments In Summation And Defendant Was Thereby Deprived Of Due Process And A Fair Trial.
D. Trial Counsel Provided Ineffective Assistance By Failing To Object To Dr. Medina's Objectionable Testimony Prior To The Second Trial.
POINT II -- THE REPETITION OF [THE VICTIM'S] VERSION OF EVENTS VIOLATED N.J.R.E. 403 BY UNDULY PREJUDICING THE DEFENDANT AND ESTABLISHING UNDUE DELAY, WASTE OF TIME, AND NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE.
POINT III -- REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.
POINT IV -- THE TRIAL COURT'S IMPOSITION OF THIRTEEN YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
The scope of our review of a judge's evidentiary rulings is generally limited to ascertaining whether the judge mistakenly exercised the judge's discretion, provided those rulings are not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007); State v. B.M., 397 N.J. Super. 367, 374-75 (App. Div. 2008). Error in the admission of evidence will not be deemed harmful if defendant's fundamental rights have not been impaired and the weight of the evidence against defendant is great. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).
We review prosecutorial excess to determine whether it was so egregious in the context of the trial as a whole as to deprive defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. dismissed as improvidently granted, 189 N.J. 420 (2007).
Finally, we "review sentences to determine if the legislative policies, here the sentencing guidelines, were violated." State v. Roth, 95 N.J. 334, 364 (1984). We also "review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record." Ibid. Last, we "determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of th[e] case makes the sentence clearly unreasonable so as to shock the judicial conscience." Id. at 364-65.
Defendant argues that the trial judge deprived him of due process and a fair trial by admitting Dr. Medina's expert testimony. First, he contends that the victim's statements to her were improperly admitted and Dr. Medina's testimony was not outside the ken of the average juror and, thus, did not qualify as expert testimony. Second, he argues that her testimony improperly bolstered the victim's testimony. Third, he was "substantially prejudiced as the doctor's testimony was improperly applied in the state's summation." Fourth, he contends his trial counsel was ineffective for failing to object to Dr. Medina's testimony prior to the second trial. We find no merit to any of these contentions.
Preliminarily, we are satisfied that defendant's counsel was not ineffective in failing to again object to Dr. Medina testifying as an expert at the second trial. He filed an in limine motion prior to the first trial. Had there been two different judges, it might have been necessary to refile the in limine motion because the law of the case doctrine is discretionary and flexibly applied in the interests of justice, State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004), and another judge might had concluded that exclusion was appropriate. However, it is unlikely that the same judge would have ruled differently on a second in limine motion. As a result, we will treat the in limine motion prior to the first trial as though it had been filed prior to the second trial.
Defendant asserts that Dr. Medina's testimony respecting the statements made to her by the victim were not made for purposes of medical diagnosis or treatment and were thus inadmissible under N.J.R.E. 803(c)(4). He urges that Dr. Medina was consulted for purposes of litigation and not for diagnosis and treatment.
We evaluate these concerns in light of defendant's opening statement to the jury. There, defense counsel stated that the victim made up a story because she wanted to get rid of her father. She pointed out there was no DNA evidence, despite the State's attempts to gather it. She informed the jury "there is [sic] no physical findings whatsoever that links [K.S.] to sexual assault on his daughter. But the biggest problem of all is the lack of corroboration."
N.J.R.E. 803(c)(4) provides:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
This hearsay exception is premised upon the notion that "the declarant is more interested in obtaining a diagnosis and treatment culminating in a medical recovery than he is in obtaining a favorable medical opinion culminating in a legal recovery." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2009). Accordingly, hearsay obtained during "evidence-gathering" medical consultations conducted purely in preparation for litigation remains inadmissible. State in re C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985).
Because N.J.R.E. 803(c)(4) is based upon a presumed "treatment motive," a statement by a declarant who is "unaware that his or her statements will enable a physician to make a diagno- sis and administer treatment" lacks the requisite degree of trustworthiness to qualify under this exception. R.S. v. Knighton, 125 N.J. 79, 87-88 (1991). Likewise, irrelevant statements regarding the proximate cause of an injury are inadmissible under this exception. State v. Pillar, 359 N.J. Super. 249, 289 (App. Div.), certif. denied, 177 N.J. 572 (2003); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 91-92 (App. Div. 1991). However, where the cause of an injury is relevant to diagnosis and treatment, such hearsay statements are admissible. Rose v. Port of New York Auth., 61 N.J. 129, 138 (1972).
Here, the victim stated that she had pain, leaving the only issue respecting the admissibility of her statements to Dr. Medina whether they were "made in good faith for purposes of medical diagnosis or treatment." Dr. Medina explained:
A. The medical information that [the victim] provides about any complaints, physical complaints with her genital region, her body, stooling, voiding as well as what mom can give me about anything regarding her physical, her behavior, all aid in what I'm looking for in the medical examination in terms of any treatment, any further testing that I need to do even if her exam is okay. Things like that.
Q. And that information you obtained, is it necessary for diagnosis and treatment to [the victim]?
This unrebutted testimony established the medical relevancy of the victim's hearsay statements elicited during the physical examination. Ibid.; see also Bober v. Indep. Plating Corp., 28 N.J. 160, 171-72 (1958) (patient's statement that he worked in a facility containing large amounts of chrome dust was admissible as relevant to diagnosis and treatment of allergy symptoms). Dr. Medina was accordingly able to tailor her examination as the victim only reported cunnilingus, not penetration, and did not require laboratory testing for sexually transmitted diseases or blood-borne illnesses.
We are not persuaded by defendant's contention that Dr. Medina was consulted purely for litigation purposes, although it is a close question. It is clear from Dr. Medina's testimony that treatment would have been provided had the examination demonstrated the need for it, whether that treatment was medical or psychological. Furthermore, the evidence was relevant to explain why there was no physical evidence, as defendant asserted in his opening statement.
Defendant relies heavily on Pillar, supra, 359 N.J. Super. at 287, arguing that under a very similar fact-pattern, a panel of this court held that similar hearsay testimony was inadmissible. In Pillar, defendant was accused of sexually assaulting P.T., a female minor, over a five-year period. Id. at 257-58.
After the defendant was indicted, P.T. was taken to the Hirsch Center where she was examined by Dr. Shaw. Id. at 287. P.T. indicated to Dr. Shaw she had been sexually abused and that "the kind of sexual abuse she was alleging included penile to genital area touching." Id. at 287 (internal quotations omitted). At trial, Dr. Shaw related these hearsay statements and testified that although her physical examination of P.T. was negative, such a result was not abnormal or unusual. Id. at 288.
The record is not entirely clear as to why P.T. was referred to Dr. Shaw for examination. On the present record, and in recognition of it being the State's burden to establish admissibility, we conclude that the doctor's testimony was not admissible under N.J.R.E. 803(c)(4).
We also cannot conclude that the inadmissible testimony was harmless error . . . . The history taken and related by the doctor included P.T.'s statement that she had been subjected to "penile to genital area touching."
We do not rule that Dr. Shaw's testimony in its entirety was inadmissible, only that part relating to the specifics of the sexual abuse as alleged by P.T. Dr. Shaw's expert testimony as to whether her negative physical examination of P.T. was consistent with the abuse testified to by P.T. was and remains acceptable. [Id. at 289-90.]
We do not find Pillar determinative. First, Pillar involved a systematic pattern of sexual abuse over a period of years. Id. at 258. Here, the victim experienced pain during cunnilingus and was seen by Dr. Medina at the Hirsch Center within a matter of days. Second, we limited our holding in Pillar to the facts of the case. Id. at 289. Although the facts surrounding the referral to the Hirsch Center physician are similar to the instant matter, as noted above, the facts of the underlying abuse are strikingly dissimilar. As such, we find no mistaken exercise of discretion in the admission of Dr. Medina's testimony.
Defendant also argues that Dr. Medina's testimony was not proper expert testimony because it was not beyond the ken of the average juror. Expert testimony in the form of opinion is only permitted if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702; accord State v. Jamerson, 153 N.J. 318, 337 (1998); State v. Odom, 116 N.J. 65, 71 (1989). A "conclusion that the jury could just as easily have drawn for itself based on its own knowledge or experience is subject to exclusion." United States v. Bois-soneault, 926 F.2d 230, 233 (2d Cir. 1991); see also State v. Nesbitt, 185 N.J. 504, 507 (2006); State v. Hackett, 166 N.J. 66, 83 (2001).
Here, Dr. Medina explained the development of genitalia in prepubescent females, the process of checking a minor female for sexually transmitted disease, the general absence of medically detectable injury from cunnilingus and fellatio despite a report of pain, the reason for the sensation of pain, and the consistency of her findings with the victim's account of the abuse. These are medical facts and opinions beyond the ken of the average juror and properly the subject of expert testimony. We find no error in admitting her testimony.*fn8
Defendant next contends that Dr. Medina impermissibly "vouched" for the victim's credibility when she opined that the lack of injury was consistent with the victim's testimony. Settled case law in New Jersey does not permit an expert witness to bolster the testimony of another witness by vouching for his or her credibility. State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993). This is so because it would improperly encroach upon the province of the jury's fact-finding mandate. Ibid.; see also State v. Frisby, 174 N.J. 583, 594 (2002) ("[T]he mere assessment of another witness's credibility is prohibited."); State v. Papasavvas, 163 N.J. 565, 653 (2000) ("It is not a medical function to weigh the truth of assertions or statements." (citation and internal quotations omitted)).
Unlike J.Q., supra, 252 N.J. Super. at 38-39, where there was expert testimony "before the jury that [the expert] believed the stories told by the children . . . and her reasons for that belief," Dr. Medina merely opined that the lack of physical trauma was consistent with the victim's reported patient history and that she did not expect to find any abnormalities. Cf. Rose, supra, 61 N.J. at 138. Indeed, the only time Dr. Medina spoke to the victim's credibility was on cross-examination when she testified she had no way of knowing if the victim was telling the truth. This is a far cry from an expert suggesting to the jury they should believe or disbelieve another witness. State v. Vandeweaghe, 177 N.J. 229, 239 (2003). We find no merit to this claim.
We are also not persuaded that the prosecutor improperly utilized Dr. Medina's testimony and vouched for the victim's credibility in her summation when she argued that the victim would not have submitted to a gynecological exam unless she had been abused. Neither are we persuaded that the prosecutor's closing statement that a child in the victim's position was going to be honest with a doctor deprived defendant of a fair trial because, as he contends, there was no proof that Dr. Medina was the victim's doctor at all. Nor did the prosecutor inappropriately attempt to inflame the passions of the jury against him when she reiterated Dr. Medina's testimony regarding the victim's physical-examination procedure.
Prosecutors "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988)). To that end, a prosecutor may make--and indeed is expected to make--a "vigorous and forceful closing argument to [the jury]." Ibid. While "it is improper for a prosecutor to contend in summation that [a witness] had no motive to lie," prosecutorial misconduct generally must be so egregious that a defendant is denied a fair trial. State v. R.B., 183 N.J. 308, 331-32 (2005). Thus,
[i]n determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and degree of responsiveness of both counsel and the court to improprieties when they occurred. Specifically, an appellate court must consider (1) whether defense counsel made timely and appropriate objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. [Id. at 332-33 (quoting Frost, supra, 158 N.J. at 82-84) (emphasis added).]
No objection was raised at trial to the prosecutor's remarks, indicating that defendant's trial counsel did not believe that they were prejudicial at the time they were made. Ibid. Moreover, defendant concedes that "the gravamen of the defense was that [the victim] was an incredible witness" prone to lying and his counsel's closing argument focused on that defense.
As the State points out, it is entitled to respond directly to arguments raised by defense counsel during summation. See State v. Vasquez, 374 N.J. Super. 252, 260-61 (App. Div. 2005) (prosecutor's remarks, albeit somewhat excessive, responded directly to defense counsel's suggestion that a State witness either deliberately lied or stretched the truth to obtain a conviction and thus did not constitute reversible error). We find no plain error in the prosecutor's summation as a whole.
Defendant next argues that the "State violated both the letter and spirit of N.J.R.E. 403 when it repeatedly elicited testimony detailing the victim's allegations of abuse." He contends that the testimony of V.A., Genna, and Dr. Medina regarding the alleged abuse was "redundant, superfluous, and unnecessary for the jury to determine the ultimate issue before it."
A trial judge's evidentiary decisions are reviewed for a mistaken exercise of discretion and are thus "subject to limited appellate scrutiny." State v. Buda, 195 N.J. 278, 294 (2008) (citations omitted). A mistaken exercise of discretion may be found where the judge's "finding was so wide of the mark that a manifest denial of justice resulted." State v. L.P., 352 N.J. Super. 369, 378 (App. Div.) (citation and internal quotations omitted), certif. denied, 174 N.J. 546 (2002). Due to the trial judge's "intimate knowledge of the case," State v. Ramseur, 106 N.J. 123, 266 (1987), only where there is a "'clear error of judgment' should the 'trial court's conclusion' . . . be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996)).
N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Relevant evidence is any evidence tending "to prove or disprove any fact of consequence to the determination of the action," and is generally admissible. N.J.R.E. 401; N.J.R.E. 402. Unlike Rule 404(b), which is a rule of exclusion, State v. Nance, 148 N.J. 376, 386 (1997), Rule 403 by its plain terms strongly favors inclusion of evidence, cf. 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). Accordingly, evidence that is relevant and tends to establish the proposition that it is offered to prove is generally admissible. State v. Burr, 195 N.J. 119, 127 (2008).
While the "obverse is also valid, i.e., relevant evidence loses some of its probative value to the extent it becomes more 'cumulative,'" Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 403 (2009), this determination lies within the broad discretion of the trial judge, State v. Harris, 156 N.J. 122, 178 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001).
Defendant contends that admitting the testimony of three witnesses in addition to the victim created a "parade of separate horribles" that was "redundant, superfluous, and unnecessary for the jury to determine the ultimate issue before it." We disagree.
As discussed above, Dr. Medina's testimony was properly admitted under N.J.R.E. 803(c)(4) and she explained that the absence of physical injury was consistent with the victim's version of events despite the pain she experienced. The testimony of the victim's mother was properly admitted as fresh-complaint evidence. State v. Balles, 47 N.J. 331, 338-39 (1966), cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967); see also Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2009). This evidence was not offered to prove the truth of the allegations, but to establish that the victim reported the assault, confided in someone, or sought solace or comfort from someone. State v. Bethune, 121 N.J. 137, 148-49 (1990); State v. R.E.B., 385 N.J. Super. 72, 88-89 (App. Div. 2006). The testimony of Genna was similarly admitted.
Defendant did not object at trial that the testimony from these witnesses would cause "undue prejudice, confusion of issues, or mislead the jury or [would cause] undue delay, waste of time, or needless presentation of cumulative evidence."
N.J.R.E. 403. Yet, the trial judge excluded some of the testimony sua sponte as duplicative. We thus review the admission of the remaining testimony for a plainly mistaken exercise of discretion. Such an error would have to be clearly capable of producing an unjust result. State v. Black, 380 N.J. Super. 581, 592 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Trial counsel obviously did not believe that there was such an error. State v. McGraw, 129 N.J. 68, 80 (1992). Defendant simply has not proven "that the error was clear and obvious and that it affected his substantial rights." Morton, supra, 155 N.J. at 421 (citations omitted). As a consequence, we affirm the admission of the testimony from Dr. Medina, V.A. and Genna.
After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are that repeated instances of prosecutorial misconduct denied defendant his rights to due process and a fair trial and that the sentence imposed was excessive and unduly punitive.