On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Burlington County, Indictment No. 04-09-1073-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and J. N. Harris.
Defendant was convicted of twenty counts of sexual offenses related to his step-daughter and sentenced to an aggregate term of sixty years with eighty-five percent to be served before parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The sentence aggregate was based on four consecutive sentences on four counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (2).*fn1 Defendant argues that N.J.R.E. 404(b) evidence of an act of fellatio at Hershey Park, Pennsylvania, was not admissible; that the hearsay testimony of Dr. David Hulbert, who was not qualified as an expert, but who confirmed K.R. had been sexually active, was improper; that Detective Darren Anderson should not have been permitted to testify as to what K.R. said to him or to his interpretation of a sound recording; that the aggregate of errors warrant a new trial; and that the sentence is excessive. We affirm the judgment, but remand for resentencing.
K.R. was born on May 24, 1990, and lived with her mother when she was ten years old. Her mother lived with defendant in Cherry Hill. K.R. has a younger half-sister, K.E., who was born in 2002.
When K.R. was in the fifth grade, she would watch wrestling on television, sometimes accompanied by defendant, who would wrestle with her. According to K.R., the wrestling led to defendant "rubbing up on" her. Eventually, defendant began "dry humping" K.R. and removing her pants and underwear. On the first occasion, defendant penetrated K.R.'s vagina with his penis. After he finished, he ejaculated on her stomach and wiped it off with his undershirt. It caused K.R. to be in pain afterward, both while she sat on the floor and while she attempted to use the bathroom.
Thereafter, on another occasion, while K.R. was asleep on the floor and her mother was in the shower, defendant began "pacing back and forth" in the bedroom, which K.R. shared with her mother and defendant. Defendant then pulled off K.R.'s pants and underwear and had vaginal sex with her.
On a third occasion, while K.R. was waiting for one of her mother's friends to come to the house, she and defendant were wrestling on the living room floor. Again, defendant began "dry humping" K.R. and then he took her clothes off and "enter[ed]" her.
In the summer of 2001, before K.R. entered the sixth grade, the family moved from Cherry Hill to Edgewater Park. Shortly thereafter, in September, defendant and K.R.'s mother married. According to K.R., while in Edgewater Park, defendant had sex, including cunnilingus, with her in her room, on the pool table "in the basement," defendant's room, the computer room, and on the stairs leading up from the basement. On one such occasion, while in the basement, defendant asked K.R. if he could take a picture to show her what intercourse looked like. He took the picture on a digital camera while defendant was "in" her.
The last incident K.R. could remember occurred in May 2004, while K.R. was in the shower. When K.R. turned around, she saw defendant peeking in. He remarked that she had "nice breasts" and told her things he wanted to do to her if he could. She then wrapped herself in the shower curtain, which caused defendant to continuously ask to see her breasts, "just once" and that he would leave her alone. In order to end the situation, K.R. showed defendant her breasts. Approximately two minutes later, after defendant had left the bathroom, he reentered and grabbed K.R.--who was now out of the shower--and "picked [her] up, took [her]" to his bedroom, where he had vaginal sex with her and "started kissing it and licking around it." K.R. remembered the date, May 12, 2004, because her eighth grade class took a trip to Philadelphia.
About a week later, K.R. was having an argument with her mother. While angry with her mother for calling defendant on the phone to tell him about the fight, K.R. yelled out "while you're sitting there telling him everything about me, why doesn't he tell you what he's been doing to me all these past years. Tell... her, Tom [defendant]. Tell her how you have been having sex with me." Defendant then asked to speak with K.R., calling her by her nickname "Gatti," and asked her why she said that when he was "sticking up" for her. K.R.'s mother then hung up the phone, and K.R. told her mother about the abuse.
Shortly thereafter, defendant arrived home. Defendant and K.R.'s mother then began to argue, and defendant looked over at K.R. and pleaded with her "please don't do this to me."
Subsequently, K.R.'s mother took her to see Dr. David Hulbert, a obstetrician/gynecologist who sent K.R. to the emergency room. However, the hospital personnel would not examine her because "it wasn't an incident proximate to what was going on," and Dr. Hulbert examined K.R. in his office. He found that she had "normal external genitalia, the hymen was not intact and easily allowed Peterson speculum." He concluded that she had been sexually active because the hymen was not intact, which usually occurs "through penetration of the penis." However, he did not find any acute external trauma, which would have indicated recent activity. Additionally, he did not find any lesions on K.R.'s cervix or uterus, but noted that he "could easily fit two fingers into her vagina[,]" which "would be consistent with [K.R.] being sexually active."
Later that evening, K.R.'s mother took her to the Burlington County Prosecutor's Office. While there--now into the early morning hours of May 21--she met with Detective Darren Anderson who took a videotaped statement from K.R. Therein, she recounted the various instances of sexual abuse involving defendant. The interview ended at approximately 2:20 a.m., at which time Detective Anderson obtained consent from K.R.'s mother to search their house to look for the digital camera defendant used to photograph intercourse with K.R. A camera was recovered, but no incriminating photographs were found. However, later that day, Detective Robert Hageman did find an "unlabeled eight millimeter video" depicting a white male, which then went dark, but contained a female voice. Utilizing a UV light, the detectives also obtained evidence from the pool table, couch, and stairwell, which indicated the presence of semen.
Several days later, Detective Anderson watched the videotape found by Detective Hageman, which showed a white male concealing a camera he was focusing on a plaid couch. The individual maneuvering the camera had "a tattoo on the upper right-hand shoulder" and "the upper left-hand shoulder as well as a pendant attached to a chain." In the bottom right-hand corner of the video was a time-stamp, which read "9:15 p.m. on March 11 of 2003." The image then went blank and only the audio functions of the tape continued. Detective Anderson heard a voice which, from conversations he had with her, Anderson believed to be K.R. repeatedly saying "[s]top, Tom, stop." The detective then heard sounds he believed to signify "sexual activity" followed by sounds from a movie, "Queen of the Damned," which was playing on the television. At some point during the recording, a voice from the television program indicated that "Six Feet Under" would be airing at 11:00 p.m. A voice also could be heard saying "wake up, G[a]tti" as well as an unidentified "cough" followed by the sound of a door being shut.
On June 4, Detective Anderson executed a search warrant that permitted the detective to obtain visual images of defendant's tattoos. Accordingly, the detective brought defendant to the Prosecutor's Office, where images were captured on a digital camera. The image of defendant's right shoulder depicted an Irish Flag with "Thomas" written in the middle of the flag. Detective Anderson also photographed defendant's upper left-hand shoulder, which contained an image of a "Claddagh." The images taken on June 4 were consistent with those portrayed on the unlabeled videotape.
The Prosecutor's Office also contacted HBO, in an effort to determine what shows were being played on March 11, 2003. Detective Anderson was informed that from 9:00 p.m. to 11:00 p.m., "Queen of the Damned" aired on HBO. He also learned that "Six Feet Under" was scheduled to begin at 11:00 p.m.
Several weeks later, on June 18, 2004, K.R., accompanied by her mother, again went to the Burlington County Prosecutor's Office so that K.R. could give Detective Anderson a letter indicating that she lied about the alleged incidents of sexual abuse she reported. Apparently, K.R. felt as though she upset her family and caused pain to her mother and sister. K.R. subsequently went to be with her grandmother in Puerto Rico, where she remained up until the trial. Despite K.R.'s recantation, the Prosecutor's Office proceeded with the prosecution.
At a N.J.R.E. 104 hearing, both K.R. and Detective Anderson testified. K.R. was able to identify the voices on the tape, as well as defendant's tattoos and the medallion on the necklace. Detective Anderson recounted how he obtained the search warrants that resulted in his ability to identify defendant's tattoos. Following the hearing, the judge determined that the videotape's relevance was not outweighed by its prejudicial value, and permitted its admissibility.*fn2
K.R. testified at the trial. On cross-examination, she was questioned extensively about the videotape and her recantation. As to the videotape, she recalled that she fell asleep while the movie was playing and that no one else was present in the house, other than defendant. K.R. admitted that she felt defendant "ruined" her family and did not want him to replace her father.
The State introduced proof of K.R.'s initial statement, the semen stained pool table and couch, and the videotape. K.R.'s mother testified that she had sex with defendant on the couch in the basement on several occasions. She stated, however, that she and defendant never had sex in any other portion of the basement; nor did they have sex on the steps leading to the basement or on the pool table. She also testified that defendant used a T-shirt to wipe himself off following intercourse and that he would occasionally throw dirty clothes down the basement steps and on the pool table.
On cross-examination by the defense, K.R.'s mother was questioned about K.R.'s letter in which K.R. recanted her earlier allegations. She admitted that K.R. was not particularly fond of defendant because of an affinity she had for her ex-husband, "Dave," and that she forbade K.R. from having any boys over.
Defendant did not testify,*fn3 but presented character witnesses.
Defendant argues that the trial judge improperly permitted the State to question K.R., over objection, about an instance of sexual abuse that occurred in Hershey Park, Pennsylvania, which was not charged in the indictment. The State contended that the testimony was being offered as "identity" evidence. Specifically, the State contended that K.R. would testify that defendant had a large "vein on the top of his penis," having obtained that information during oral sex at Hershey Park. The judge permitted introduction of the incident under N.J.R.E. 404(b) "for the limited purposes of establishing identity[.]" The judge added, "I don't view the probative value being substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury. None of the 403 factors appear to apply here." The following exchange then occurred:
[PROSECUTOR:] [K.R.] you have been asked a question about Hershey Park, and you had told us that you stopped I think at a gas station to get a ...