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State v. P.S.

June 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
P.S., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court addresses: 1) the standard to be applied where a child sex abuse victim's taped statement is lost; and 2) the proper use of other-crimes evidence under N.J.R.E 404(b).

Defendant Peter Scott was indicted in Passaic County for first-degree aggravated sexual assault, (count one); second-degree sexual assault, (count two); and second-degree endangering the welfare of a child, (count three). The victim was Scott's step-daughter, Katie Jones. Prior to trial, an N.J.R.E.104 (a), hearing was held to determine whether Giselle Henriquez, a child interview specialist with the Passaic County Prosecutor's Office, could testify regarding statements made to her by Katie. At the hearing, Henriquez, who interviewed Katie on April 14, 2003, described Katie's statements to her, stating that Katie recounted three separate incidents of sexual abuse by defendant. Henriquez also testified, among other things, about her experience and training in interviewing child sex abuse victims. The judge held that Katie's statements to Henriquez were admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c) (27). The court concluded that the interview was not suggestive and that there was a probability that the statements were trustworthy.

The State later moved, pre-trial, to offer evidence of defendant's "other crime," namely, an allegation that he had sexually assaulted a three-year-old boy, I.B., in 1997, while defendant was a resident of a halfway house. After a hearing, the judge found the evidence of defendant's sexual assault of I.B. admissible to bolster the credibility of Katie and to rebut claims of bias, but only after cross-examination, if defense counsel challenged the credibility of Katie and her mother by placing their bias at issue. In making its determination, the court found that this other-crimes evidence satisfied the four-factor test articulated in State v. Cofield; namely that: the evidence was relevant because the credibility of the victim would likely be placed in issue; the other crime was similar in kind and reasonably close in time as both I.B. and Katie were child victims; evidence of the other crime was clear and convincing; and the probative value would not be outweighed by the prejudicial effect of the evidence, especially once a limiting instruction was given.

The State also made a motion in limine to preclude defendant from mentioning that Katie's uncles assaulted and blinded defendant after Katie's allegations surfaced. Defense counsel noted that the uncles were convicted of attempted murder for the assault and argued not only that Katie's mother, Ursula Jones, may have influenced Katie to fabricate her allegations to get defendant out of the house, but also that Ursula became more invested in the case against defendant after her brothers were sentenced to lengthy prison terms. The judge rejected defendant's arguments and granted the State's motion, ruling that defendant could not bring up the assault.

At trial, Katie testified that she was "raped three times" by her stepfather on three separate occasions, describing the incidents, all of which occurred when she was nine or ten years old. She also testified that in April 2003, she told her grandmother that her "private was hurting," as a way to tell her grandmother about the abuse. Ursula testified that after Katie told her about the touching after coming home from her grandmother's house and that she was thereafter taken to the hospital to be examined.

Defendant sought to introduce evidence that Katie had disclosed prior sexual activity when she went to the hospital with her mother. The evidence consisted of a notation in the hospital record reading: "11 year old female [ ] burning sensation when she urinate [sic] and also [increased] frequency of urination had sex 3 months ago one time [ ] vaginal discharge." The State argued that the evidence was barred by the Rape Shield Law, N.J.S.A. 2C:14-7. The trial judge ruled that the evidence was inadmissible as too speculative and lacking probative value.

Henriquez testified about her interview of Katie and Katie's description of the sexual abuse. She further testified that after the interview, she discovered that the video equipment had failed to tape record Katie's interview. To avoid traumatizing Katie, Henriquez declined to re-interview her; instead, she immediately made notes of everything she recalled of her questions and Katie's responses. Those notes formed the basis for a report written by Henriquez and submitted to her supervisor. The report was filed approximately two months after the interview. Henriquez's notes were discarded.

Defendant originally intended to present a vendetta defense to the jury by demonstrating that Katie, with Ursula's help, fabricated her allegations in order to get defendant out of the house. At trial, defense counsel elicited testimony from Ursula confirming that, in 1999, Ursula hit Katie and that authorities became involved. Katie confirmed on cross-examination that her mother had hit her before, and that she was afraid that her mother would hit her if she told her about the abuse. Presumably to avoid opening the door to the admission of evidence of defendant's alleged assault of I.B., defense counsel declined to attack the credibility of either witness directly and did not overtly suggest the vendetta theory.

At the conclusion of trail, the jury convicted defendant on all counts. On the sexual assaults, defendant was sentenced to a custodial term of twenty years with ten years of parole ineligibility. A consecutive sentence of ten years with five years of parole ineligibility was imposed on the endangering count.

Defendant appealed his convictions and sentence, arguing that Katie's statements to Henriquez were inadmissible because there was no videotape; the statements were not sufficiently reliable; the other-crimes evidence was improperly ruled admissible; and the Rape Shield Law did not bar the evidence he offered regarding Katie's alleged prior sexual experience. The Appellate Division affirmed defendant's conviction on all counts and his sentence on counts one and two. The panel remanded defendant's sentence on count three because of its consecutive nature, which the panel held violated State v. Yarbough. The panel rejected defendants remaining arguments. Although it agreed with defendant that the other-crimes evidence was inadmissible, the panel ruled that because the evidence was not actually admitted, any error by the court was harmless.

The Supreme Court granted defendant's petition for certification.

HELD: The Court declines to adopt a per se rule of exclusion in a case in which a child sex abuse victim's taped statement is lost. The Court reaffirms the totality of circumstances standard as the appropriate benchmark for the admissibility of a tender years statement under N.J.R.E. 830 (c) (27). In addition, the Court reiterates its holdings in State v. Cook and State v. Branch that simultaneous notes taken of a child sex abuse victim's interview should not be destroyed but should be maintained throughout trial. The Court declines to interpret its decisions in State v. G.S. and State v. G.V. as providing an automatic basis for the admission of other-crimes evidence to counter a bias or vendetta defense. Rather, such other-crimes evidence may only be admitted if it satisfies N.J.R.E. 404(b) and is not offered to prove the defendant's criminal propensity.

1. Under the tender years exception to the hearsay rule, N.J.R.E. 803(c) (27), an out-of-court statement of a child sexual abuse victim may be admitted into evidence under specific circumstances. The trial judge must conduct a preliminary hearing, pursuant to N.J.R.E. 104 (a), to determine whether the statement is sufficiently reliable and whether it is trustworthy. The judge should consider the totality of the circumstances. A trial court's determination of reliability or trustworthiness under N.J.R.E. 803(c) (27) should not be disturbed unless, after considering the record and giving the deference owed to the trial court's credibility findings, it is apparent that the finding is clearly mistaken and so plainly unwarranted that the interests of justice require that the appellate court intervene. The Court has carefully reviewed the record and, like the Appellate Division, has determined that the trial judge's conclusions are fully supported by the evidence and legally unassailable. (Pp. 14-21)

2. There is no basis for the adoption of a per se rule, which would provide that, in the absence of a tape recording, a child victim's statement should be deemed inadmissible under N.J.R.E. 803 (c) (27). The absence of a tape because of a malfunction is not dispositive; rather, it is only one factor in the totality of circumstances analysis. What is important is that the simultaneous notes of an interview should not be destroyed but should be maintained throughout the trial in case the videotape is unusable. In this case, Henriquez took notes during the interview and used those notes to prepare a full report. She testified that the material in her report reflected the contemporaneous notes made during the interview of the victim. The judge found that even in the absence of a tape or contemporaneous notes, there was enough evidence to find that Katie's out-of-court statement was trustworthy. (Pp. 21-24)

3. Because the other-crimes evidence rule, N.J.R.E. 404 (b) is a rule of exclusion, the proponent of other-crimes evidence must satisfy a four-prong test: 1)the other-crime evidence must be admissible as relevant to a material issue: 2) it must be similar in kind and reasonably close in time to the offense charged: 3) the other-crime evidence must be clear and convincing; and 4) the probative value of the evidence must not be outweighed by its apparent prejudice. Other-crimes evidence must be necessary for the proof of the disputed element and should not be admitted solely to bolster the credibility of a witness against a defendant. Here, the other-crimes evidence was an unrelated sex crime, which was only linked to the bias of the State's witnesses by the notion that if defendant did it before, he likely did it again, thus supporting the credibility of Katie and Ursula. While the Court agrees with the Appellate Division that this evidence should not have been admissible, it disagrees that this error was harmless. Although the other-crimes evidence was not actually admitted into evidence, the defendant paid a price to keep it out. He was forced to alter trial strategy completely and he was effectively precluded from presenting the vendetta theory, which was central to his defense. (Pp. 24-34)

4. From the evidence defendant proffered in respect of a hospital notation of Katie's alleged past sexual activity, there is no way to determine whether this was similar to defendant's alleged abuse, or even separate from it; the reference may well have been to defendant's abuse of Katie. Therefore, the Appellate Division correctly ruled that evidence sufficient to counter the Rape Shield Law had not been adduced. (Pp. 34-37)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial consistent with the principles to which the court has adverted.

JUSTICE RIVERA-SOTO, concurring in part and dissenting in part, in which JUSTICE HOENS joins, finds that in the circumstances presented, there is no basis for determining that the trial court abused its discretion in allowing the use of prior bad acts evidence to rebut any claimed "vendetta defense." In any event and based on the facts in this case, that evidentiary determination, even if in error, was harmless; therefore, the judgment of the Appellate Division should be sustained and defendant's conviction and sentence affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and WALLACE join in JUSTICE LONG'S opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part, in which JUSTICE HOENS joins.

The opinion of the court was delivered by: Justice Long

Argued February 1, 2010

In this appeal we address several recurring issues in criminal law. The first is what standard to apply where a child sex abuse victim's taped statement is lost. In particular, defendant asks us to establish a per se rule of exclusion in such circumstances, a request that we decline. Instead we reaffirm the totality of circumstances standard as the appropriate benchmark for the admissibility of a tender years statement under N.J.R.E. 803(c)(27). In addition, we reiterate our holdings in State v. Cook, 179 N.J. 533 (2004), and State v. Branch, 182 N.J. 338 (2005), to the effect that simultaneous notes taken of a child sex abuse victim's interview should not be destroyed but should be maintained through trial.

The second issue centers on the proper use of other-crimes evidence under N.J.R.E. 404(b). Like the Appellate Division, we conclude that a defendant's invocation of the so-called vendetta defense does not permit the prosecutor to bolster the credibility of a sex abuse victim by adducing evidence of another molestation. To be sure, such evidence could be offered to negate accident; to establish motive, pattern, or design; or for a myriad of other legitimate reasons under the rule. What is interdicted is its admission to show that because the defendant committed a bad act before, he is likely to have committed one again, thus making the victim's story more believable.

I.

Defendant Peter Scott was indicted in the Superior Court of Passaic County for first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (Count One); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (Count Two); and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (Count Three), all allegedly perpetrated on his stepdaughter, Katie Jones.*fn1

Prior to trial, a preliminary hearing pursuant to N.J.R.E. 104(a) was held to determine whether Giselle Henriquez, a child interview specialist with the Passaic County Prosecutor's Office, could testify regarding statements made to her by Katie. At the hearing, Henriquez, who interviewed Katie on April 24, 2003, described Katie's statements to her as follows:

[Katie] referenced an incident where [defendant] put a pillow over her head. She was laying on the bed. He turned her over. He -- these again were his -- her words. And he put a pillow over her head because she was trying to call her brother or something to that degree. . . . .

She was very specific in saying he turned her -- she was on her back, to -- so, she --he turned her onto her stomach.

He put his private, which she referred to as his private in her butt. [The second time] was pretty much the same. Him putting his private in her butt.

He pulled -- he pulled it out and yellow stuff came out . . . either he urinated or ejaculated.

On the third incident, I think that was the one that she describes where he not only put his private in her butt but also in her front part, I think she uses -- she refers to her vagina? . . . [a]nd put his private into her -- into her front part.

Henriquez testified that she had extensive experience interviewing child sex abuse victims and had been well-trained in interview techniques. According to Henriquez, she "stressed the importance of telling the truth," and Katie agreed to do so. Henriquez testified that she did not promise Katie anything during the interview, that she never suggested any answers to her, and that Katie was the one who first brought up defendant's name.

The judge held that Katie's statements to Henriquez were admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). In ruling, the judge found that the interview was not suggestive and that there was a probability that the statements were trustworthy.

The State then moved, pre-trial, pursuant to N.J.R.E. 404(b), to adduce evidence of defendant's "other crime," namely, an allegation that defendant had sexually abused a three-year-old boy, I.B., in 1997, while defendant was a resident at a halfway house.

An evidentiary hearing was held at which I.B.'s mother testified that she left I.B., then three years old, to play on the porch of the halfway house unsupervised, and that defendant was on the porch with him. She further testified that after they left the halfway house, I.B. told her that defendant had touched him. Pointing to places on his body, the mother determined that defendant had touched I.B. on his buttocks and rectum. Charles H. Parks, a supervisor at the halfway house, testified that he had told I.B.'s mother on March 24, 2007, and on previous visits, not to let I.B. out of her sight; she had ignored his requests. Parks also testified that defendant and

I.B. were alone on the porch, and that he heard defendant tell I.B. to hold the back of his pants. Parks explained that in prison culture, that meant that I.B. was defendant's "woman." Finally, Dr. Mary Grace Ponce testified that she had examined I.B. on March 24, 1997, and that I.B. had told her that defendant put medicine or cream in I.B.'s behind. When Dr. Ponce examined I.B.'s rectum, I.B. said, "[defendant] did that." Dr. Ponce noted two superficial fissures, or cuts, in I.B.'s rectal area, and said that the fissures could "be caused by constipation but [that she could not] entirely rule out fondling or sexual abuse."

The judge found that the other-crimes evidence satisfied the four-factor test articulated in State v. Cofield, 127 N.J. 328, 338 (1992): the evidence was relevant because the credibility of the victim would likely be placed at issue; the other crime was "similar in kind" and "reasonably close in time" as both I.B. and Katie were child victims; evidence of the other crime was clear and convincing; and the probative value would not be outweighed by the prejudicial effect of the evidence because the judge would give the jury a limiting instruction. Thus, the judge held that evidence of defendant's sexual assault of I.B. would be admissible to bolster the credibility of Katie and to rebut claims of bias, but only after cross-examination, if defense counsel challenged the credibility of Katie and her mother by placing their bias in issue.

The State also made a motion in limine to preclude defendant from mentioning that Katie's uncles assaulted and blinded him on June 3, 2003, after Katie's allegations surfaced. Defense counsel represented that the uncles were convicted of attempted murder for the assault and argued not only that Katie's mother, Ursula Jones,*fn2 may have influenced Katie to fabricate her allegations to get defendant out of the house, but also that Ursula became more invested in the case against defendant after her brothers were sentenced to "15 and 12 years" in prison. The judge rejected defendant's arguments and granted the State's motion, ruling that defendant could not bring up the 2003 assault.

At trial, Katie testified that she was "raped three times" by her stepfather on three separate occasions, all of which occurred when she was nine or ten years old. She described one incident wherein he "pushed [her] and then turned [her] over onto [her] stomach," and then "put his private part in [her] butt"; a second incident wherein he "pushed [her] back on the bed and put his private in [her] butt" and "something --- yellow stuff came out"; and a third incident wherein he "came in [her] room and he put his private in [her] front and in [her] back." Katie further testified that on April 24, 2003, she went to her grandmother's house after school. Katie told her grandmother that her "private was hurting," because she "felt like that was [her] way to tell" her grandmother about the abuse.

Ursula testified that when she picked Katie and her brother up from their grandmother's house that day, the grandmother informed Ursula that Katie's "bottom was hurting" and that Katie had something to tell Ursula. After bringing Katie home, Ursula asked her what happened and if someone had touched her. Katie said that it was defendant who touched her. At that point, Ursula brought Katie to the hospital to be examined. Katie testified that when she returned home from the hospital, her stepfather whispered to her, "lie so we can be a family."

During trial, defendant sought to introduce evidence that Katie had disclosed prior sexual activity when she went to the hospital with her mother. The evidence consisted of a notation in the hospital record reading: "11 year old female [ ] burning sensation when she urinate [sic] and also ↑ frequency of urination had sex 3 months ago one time [ ] vaginal discharge." Defense counsel argued that the introduction of the report was necessary for three reasons: to explain Katie's mother's statement that she had looked at Katie's vaginal opening and that it "looked bigger than . . . a normal child's at that time"; because it shed light on Katie's credibility and the consistency of the story she told; and to explain how a twelve-year-old girl would know about ejaculation. The State argued that that evidence was barred by the Rape Shield Law, N.J.S.A. 2C:14-7.

The trial judge ruled that that evidence was inadmissible. In particular he noted that there was no suggestion in the notation that ejaculation was involved in the prior incident, that the evidence was "too speculative," and that its "probative value . . . [was] not there." The trial judge also noted that Katie "didn't use any age inappropriate language that she may [not] have gotten from some other place to describe this."

According to the testimony at trial, after leaving the hospital, Ursula and Katie reported the incident to the police, who took them to see Henriquez. Henriquez testified that, in interviewing Katie, she followed a specific protocol known as "Finding Words," which is designed to gather information from a young child in a short period of time while avoiding intimidating or suggesting responses to the child. First she built a rapport with Katie; then she inquired as to the terms Katie used to refer to different parts of the male and female anatomy. Next, she questioned Katie as to what Katie considered to be "positive and negative touches." Katie volunteered that her stepfather sometimes touched her in a way she did not like, describing several incidents of sexual abuse. Henriquez recounted those statements as follows:

[Katie] told me about a time where she was lying down and her stepfather came into the room and turned her over. She was lying on a bed. He turned her over, put a pillow over her head, and put his private in her private -- or in her butt. . . . . [Katie] talked about another time where he only had underwear on and he pulled his penis out of the front hole of the underwear and put -- I'm sorry -- put his private in her butt and her vagina -- her private --her private . . . And she said -- she describes something coming -- stuff coming out of his private. . . . .

[S]he described what can be assumed is ejaculation. . . . . [Katie] told me about another incident that occurred in her Mom's bedroom. Her Mom had -- she said she was sleeping in bed with her Mom. Her Mom had gotten up to go to work. And she heard steps. She heard someone walking. Her Mom had already left for work. Her stepfather came into the bedroom, took -- taken off his clothes, and gotten into bed with her. And she specifically said she was holding onto a pillow and he rolled her over, put his private in her -- in her private and in her butt.

Henriquez further testified that she had intended to videotape the interview, and believed that the interview was being recorded; however, after the interview, she discovered that the video equipment had failed. To avoid traumatizing Katie, Henriquez declined to re-interview her; instead, she immediately made notes of everything she recalled of her questions and Katie's responses. Those notes formed the basis for a report that Henriquez wrote and submitted to her supervisor. The report was filed on June 26, 2003, approximately two months after the interview, and Henriquez's notes were discarded.

Defendant originally intended to present a vendetta defense to the jury by demonstrating that Katie, with Ursula's help, fabricated her allegations in order to get defendant out of the house. At trial, defense counsel elicited testimony from Ursula confirming that, in 1999, Ursula hit Katie and the authorities became involved. The judge allowed the question under the theory that because Katie was afraid of her mother, Ursula would be able to coerce Katie into lying about the sexual abuse. Katie confirmed on ...


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