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State v. Gaud


April 15, 2010


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0496.

Per curiam.


Submitted January 6, 2010

Before Judges Sabatino and J. N. Harris.

After a jury trial, defendant Angel Gaud was found guilty of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree burglary, N.J.S.A. 2C:18-2; and simple assault, N.J.S.A. 2C:12-1a. Defendant was acquitted of certain more severe offenses that had been charged in the indictment, including first-degree aggravated sexual assault, and several second-degree offenses. At sentencing, the trial court merged the burglary and fourth-degree sexual contact conviction into the conviction for third-degree aggravated criminal sexual contact. It imposed a three-year prison term, along with Megan's Law registration obligations and parole supervision for life, pursuant to N.J.S.A. 2C:7-2 and N.J.S.A. 2C:43-6.4, plus various fines and penalties.

Defendant now appeals, alleging that the trial judge erred in precluding his trial counsel from cross-examining the victim about certain accusations that she had made about him to the police after the wrongful sexual contact and burglary had occurred. Defendant also argues that his sentence was excessive and that the judge should have applied a presumption of nonincarceration. For the reasons stated in this opinion, defendant's arguments are unpersuasive and we accordingly sustain his convictions and sentence.


According to the State's proofs at trial, the underlying offenses arose out of defendant's retaliatory acts as a jealous ex-lover. The testimony reflects that defendant and the victim, Z.N., had an eleven-year dating relationship and two children together. At the time of the charged offenses, they were separated and Z.N. apparently had an outstanding domestic violence restraining order against defendant.

On the morning in question, December 23, 2006, Z.N. received a telephone call at her apartment at approximately 7:30 a.m., with the caller ID indicating that the call was coming from defendant. When Z.N. answered the call, she did not receive an audible response from the caller. Z.N. hung up and immediately called the defendant's cell phone number. According to her testimony, he picked up the call but did not speak. Z.N. had gone to dinner with her new boyfriend the previous night, and the two of them had spent the night together at her apartment.

About five or ten minutes after the telephone call, defendant arrived at Z.N.'s apartment door. He broke the security chain on the door to get inside. Z.N.'s new boyfriend had left earlier and she was alone in the apartment. At that point, defendant grabbed Z.N.'s wrists and dragged her into the bedroom. He then accused her of having sex with another man, inserting his finger into her vagina to try to confirm his allegations. Defendant then started to suffocate Z.N. but a neighbor from across the hall interceded, knocking on Z.N.'s door and holding a knife. Z.N. escaped into the neighbor's apartment and defendant left the scene.

Z.N. was taken to the hospital but declined to have the police have her tested for rape later that day. She returned to the hospital the next day and was treated for injuries to her lower back and a contusion on her lip.

Defendant was subsequently indicted and charged with the previously-noted offenses. The case was tried before a jury for three days in February 2008.

The State presented three witnesses in its case-in-chief: one of the two Elizabeth Police Department officers dispatched to the scene on the day in question; Z.N., the victim; and the neighbor who intervened to stop the attack. The police officer testified as to the condition of the apartment after he and his partner were called to the scene. He noted the broken chain lock on the door of Z.N.'s apartment and Z.N.'s distraught attitude. Z.N. recounted the events leading up to and including defendant's forced entry into her apartment and the physical attack.

The State also presented testimony from Z.N.'s next-door neighbor, who stated that she had heard Z.N.'s door slam, followed by the sounds of people inside her apartment "dragging furniture" and fighting. The neighbor specifically heard Z.N. "begging someone to leave her alone," and muffled screams. The neighbor knocked on Z.N.'s door, but returned to her apartment after no one answered the door. When the screaming and sounds of apparent begging continued a few minutes later, the neighbor grabbed a kitchen knife and again knocked on Z.N.'s door. When the door opened, Z.N. escaped from defendant and ran into the neighbor's apartment. According to the neighbor, defendant pointed to Z.N. and said, "you already know." The neighbor testified that defendant then left, and she attended to Z.N., who was crying and had finger marks on her cheek.

Defendant testified in his own behalf. He claimed that he had called Z.N. on her cell phone at 7:30 a.m. on December 23, because neither he nor their two children knew her whereabouts. Defendant stated that he then went to Z.N.'s apartment and observed a man leaving the premises. He then knocked on the door, and Z.N. let him inside, where the two of them allegedly had an argument "in a normal tone of voice," with "no aggression." Defendant denied that he touched Z.N., noting that he had surgery on his right arm two days before for an ingrown hair. He specifically denied that any violence took place. He stated that he saw Z.N.'s neighbor as he was leaving the apartment and that he saw Z.N. leave her apartment, seconds after he did, and go into the neighbor's unit.

In its rebuttal case, the State presented testimony from the eleven-year-old daughter of Z.N. and defendant. She testified that she had slept at her cousin's house on the night before the incident, and that defendant had called her thereafter and told her that her mother had been sleeping with another man. She also noticed that the chain was broken on the door to her mother's apartment when she returned there the following day. The State also presented testimony from a sergeant from the County Prosecutor's office. The sergeant testified that she had obtained Z.N.'s telephone records, which showed that calls had been placed from defendant's phone to Z.N.'s residential phone at 7:30 a.m. and again at 7:32 a.m. on December 23, 2006, and that a call had been thereafter placed from Z.N.'s phone to defendant's cell phone at 7:33 a.m.

Following summations and the jury charge, neither of which is challenged on appeal, the jury deliberated and returned its verdict. The court imposed sentence five months later.

On appeal, defendant raises the following points for our consideration:



A. The Trial Court Erred In Failing To Conduct An Admissibility Hearing Pursuant To N.J.R.E. 104 And N.J.R.E. 608(b), To Determine Whether The Prior Accusations Charging Defendant With Criminal Conduct Were Actually Made By The Victim-Witness, And Whether Those Accusations Were False And Therefore Admissible For Impeachment Purposes.

B. The Trial Court Abused Its Discretion By Precluding Cross-Examination Of The State's Victim-Witness Regarding Prior Accusations She Had Made To The Elizabeth Police Department Involving The Defendant Because This Evidence Was Admissible Under N.J.R.E. 404(b).




Defendant argues that the trial court erred in several respects in curtailing defense counsel's cross-examination of Z.N. In particular, defense counsel wished to cross-examine Z.N. about three distinct accusations that she had made about defendant following her encounter with him at her apartment on the morning of December 23, 2006. All three accusations were included in a January 2, 2007 investigation report of the Elizabeth Police Department.

First, according to the police report, Z.N. claimed that defendant was making harassing calls to her relatives in the Dominican Republic, although she did not know the extent of those conversations. Second, Z.N. told the police that she herself had received two phone calls from defendant, from either a pay phone or a blocked phone number, following the incident. She reported that he never spoke during these calls and hung up when she told him that she knew it was him calling. Finally, Z.N. alleged that, on December 30, 2006, a week after the attack at her apartment, she had found her locked car unlocked when she returned to it in the parking lot. She accused defendant of opening the car door with his key.

Defendant's trial counsel contended that all three of these accusations by Z.N. were "baseless." He sought to cross-examine Z.N. about them in order to impeach her credibility, essentially in an effort to support the defense theme that Z.N. had acted against defendant out of spite, and that she had either exaggerated or fabricated the instant accusations of burglary and of sexual assault.

Defendant's trial counsel specifically invoked N.J.R.E. 404(b), which allows the admission of evidence of other prior acts or wrongs, not for purposes of proving a character trait but for showing certain factors such as a person's state of mind. See N.J.R.E. 404(b). Specifically, defense counsel argued to the trial judge that the three accusations in the police report provided "an indication that the alleged victim is making accusations about [defendant] which are baseless and of which she has[,] in two instances[,] no knowledge whatsoever but yet she feels that he is somehow either stalking her, harassing her[,] or trying to somehow do her harm." Counsel urged that the proffered evidence shows Z.N.'s alleged "motive to try to hurt my client [defendant]," which counsel tied to the defense's claim that "she had warned him [defendant] in effect that she would retaliate against him and hurt him for having[,] in effect[,] cheated on her with other women . . . [.]"

The prosecutor opposed the cross-examination of the victim concerning the three accusations. He emphasized that there was "no evidence whatsoever that any one of those accusations is actually false." The prosecutor further argued that the alleged acts by defendant, which were the subject of the three accusations, were dissimilar from the offenses charged in the indictment. He also argued that the accusations' probative value in potentially undermining the victim's credibility was outweighed by undue prejudice to the State and would confuse the jury. Hence, under N.J.R.E. 403, the proposed cross-examination should not be allowed.

The prosecutor pointed out to the trial judge that in State v. Guenther, 181 N.J. 129 (2004), the Supreme Court authorized the use of false-accusation evidence to impeach a crime victim's credibility under a different evidence provision, N.J.R.E. 608, but only in "limited circumstances and under very strict controls." Id. at 154. In Guenther, the Court disapproved of the risk of a "sideshow trial" if the admission of such impeachment evidence were not "strictly regulated." Id. at 155. The Court authorized such proofs only where "the admission of prior false accusation evidence is central to deciding a case that hinges on the credibility of a victim-witness." Ibid. (emphasis added). In response to the N.J.R.E. 608 argument, defendant's trial counsel stated that he was not alleging that Z.N.'s three contentions to the police were "false accusations," but rather that they were "baseless."

After carefully considering these arguments and the applicable law, the trial judge denied defendant's request to cross-examine Z.N. about the three post-incident accusations. The judge agreed with the prosecutor, using the phraseology of the Supreme Court in Guenther, that allowing interrogation into those three separate matters would turn the examination into a "sideshow." The judge further concluded that the defense counsel had not shown that the three accusations alleged conduct by defendant similar to the crimes alleged in the indictment. Given the lack of similarity, the judge found the three alleged incidents inadmissible under N.J.R.E. 404(b), as construed in State v. Cofield, 127 N.J. 328, 337-38 (1992). The judge also found that the victim's accusations, which were not claimed or shown to be false, did not satisfy the standards of N.J.R.E. 608 and Guenther. Finally, the judge determined that the asserted probative value of the evidence was not "worth the time and effort that would go into such a sideshow," thereby implicitly applying the exclusionary factors of N.J.R.E. 403.

On appeal, defendant contends that the trial court should have permitted the proposed line of cross-examination, and that foreclosing it not only violated the Rules of Evidence but also defendant's right of confrontation under the Confrontation Clause. Defendant contends that, at a minimum, the trial judge should have conducted an evidentiary hearing concerning the three accusations under N.J.R.E. 104, outside of the jury's presence, before deeming the proofs inadmissible. We disagree.

Defendant's confrontation claim is readily dispelled by the Supreme Court's analysis in Guenther. In Guenther, the Court recognized the limited right of defense counsel to cross-examine victims about "central" issues of prior false accusations, but only under the Rules of Evidence, specifically N.J.R.E. 608. The Court specifically eschewed reliance upon the Confrontation Clause of the Sixth Amendment to the United States Constitution, or upon the New Jersey Constitution's cognate provision at article I, paragraph 10. Guenther, supra, 181 N.J. 147-51. In fact, the Court observed that "[u]ndoubtedly, the Confrontation Clause was not intended to sweep aside all evidence rules regulating the manner in which a witness is impeached with regard to general credibility." Id. at 150.

We likewise discern no reason in the present case to elevate defendant's claim to one of constitutional magnitude. Moreover, even if we were required to address the argument on a constitutional level, the impeachment proofs that were excluded here were simply too attenuated to compel their admission as a matter of constitutional right.

As a matter of codified evidence law, we are likewise satisfied that the trial judge did not abuse his discretion in disallowing the proposed cross-examination. Where a trial judge has excluded evidence that is apt to mislead or confuse jurors or create undue prejudice, appellate courts will uphold such rulings unless there is a "clear error of judgment." 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).

The alleged telephone calls to the victim's relatives and to the victim herself, as well as the car-opening incident, are not sufficiently similar to the violent acts charged in the indictment to fit within the limited scope of cross-examination authorized by Guenther. There is no proof that the accusations were false, or, for that matter, were "baseless." All we know from the record is that Z.N. made the accusations within a week after she was allegedly attacked. Even if untrue, they shed very little illumination upon the truth or falsity of Z.N.'s account of the violent attack itself. The trial judge had a reasoned basis for not allowing the defense to delve into those matters, and for characterizing them as a sideshow.

Lastly, we do not find that an evidentiary hearing was required in the present circumstances, notwithstanding the language within N.J.R.E. 608 indicating that such false-accusation evidence is admissible only "[i]f the judge preliminarily determines, by a hearing pursuant to [N.J.R.E.] 104(a), that the witness knowingly made the prior false accusation." N.J.R.E. 608(b). We do not read N.J.R.E. 608 to require an evidentiary hearing in all cases where a claim of false accusation is raised, no matter how attenuated the proofs may be. Defense counsel proffered no counter-proofs indicating that the three accusations were actually false, or that Z.N. had "knowingly" reported falsehoods. In fact, defense counsel expressly declined to characterize the accusations to the court as "false."

In sum, the trial court's evidentiary ruling was reasonable, and we detect no reason to set aside defendant's conviction. The conviction is therefore affirmed.


We briefly turn to defendant's argument that his three-year custodial sentence was excessive and that the trial judge improperly deprived him of a statutory presumption against incarceration on a third-degree sexual offense under N.J.S.A. 2C:44-1e. The presumption is inapplicable here because: (1) defendant had a past prior conviction for contempt and he did not establish that he was found guilty of contempt without counsel or without waiving his right to the assistance of counsel, see State v. Regan, 209 N.J. Super. 596, 606 (App. Div. 1986); and (2) the judge found defendant was a danger to the public by virtue of the nature of his wrongful conduct. See N.J.S.A. 2C:44-1e (providing an exception to the presumption of non-incarceration where such a finding is made).

We also are not persuaded that the sentence was excessive. The judge imposed the minimum custodial sentence for a third-degree crime. See N.J.S.A. 2C:43-6b(3). The judge reasonably weighed the pertinent aggravating and mitigating factors, and we detect no manifest injustice to warrant interfering with the trial judge's assessment. See State v. Bieniek, 200 N.J. 601, 612 (2010) (admonishing appellate judges to refrain from "second-guessing" the discretion of sentencing judges); see also State v. Roth, 95 N.J. 334, 365 (1984).



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