On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-05-0556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino, and Kestin.
Following a jury trial, defendant A.R.*fn1 was found guilty of second-degree endangering the welfare of a child who was less than sixteen years of age, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). The jury found defendant not guilty of first-degree aggravated sexual assault and second-degree criminal sexual contact.
The charged offenses arose out of multiple instances of sexual contact between defendant and his wife's younger sister, V.C., when V.C. was between the ages of five and nine. The events took place between 1990 and 1993, when V.C. was living in the same Vineland residence with defendant and other family members. Defendant was the only adult in the household who was not employed during this period. As a result, he often served as a babysitter for the four minors in the household, including three of his own children and V.C.
According to the State's proofs, defendant exposed himself to V.C. on several occasions when he was baby-sitting her and the other children at the family residence. Defendant at times would make V.C. "ride the horse" on his lap, and get her to "model" for him in dresses and bathing suits. The State further alleged that defendant sexually penetrated V.C. and played games with her as a means to commit acts of sexual assault.
V.C. allegedly told her mother, defendant's mother-in-law, about these incidents when she was fourteen, but neither she nor her mother did anything about them at that time. V.C. did not report the incidents to outsiders until several years later when she was in high school. V.C. initially spoke with a student counselor, Angela Stanley, to whom she revealed the abuse after initially denying it. Stanley met V.C. through a mentoring program for students at the local high school. V.C. waited a few more years, until she was eighteen or nineteen, before she finally went to the police and lodged complaints against defendant.
V.C. was the State's primary witness at trial. The State further presented testimony from V.C.'s mother, Stanley, and Steven O'Neill, the Vineland police detective who led the investigation.
Additionally, the State presented testimony from defendant's son Andrew,*fn2 who had been living in the family residence at the time of the events. In a pretrial statement to the detectives, Andrew told them that defendant had exposed himself to the children during hide-and-seek games. On direct examination in the State's case at trial, however, Andrew denied ever personally seeing defendant expose himself to V.C. The prosecution then used Andrew's prior out-of-court statement for purposes of impeachment. When confronted with the prior statement, Andrew acknowledged that his father did pull his pants down and expose himself to at least one child, although not to the victim in this case, V.C.
In defending against the State's allegations, defendant contended that these incidents of sexual wrongdoing and lewdness did not occur. He did not testify, but he did present the testimony of his eldest daughter, Amy, in his behalf. Amy, like Andrew and V.C., was a minor at the time of these incidents and present while defendant babysat the children. Consistent with Andrew's testimony, Amy denied ever witnessing any sexual contact between defendant and V.C.
Following his conviction, defendant made several unsuccessful motions to the trial court seeking to set aside the verdict. The motions were largely based on a series of post-verdict letters and statements by Andrew, in which he essentially claimed that his trial testimony had been coerced by the prosecutor and his mother, and that his testimony was untruthful. Upon receiving these statements, the trial judge found Andrew's attempted recantations to be insincere and insufficient to warrant a new trial.
After denying defendant's final post-trial motion, the trial judge sentenced defendant. The judge imposed eight years of imprisonment for the conviction on second-degree endangering the welfare of a child, with a four-year period of parole ineligibility. As to the conviction on forth-degree lewdness, the judge sentenced defendant to eighteen months, a sentence which was to run concurrently with the longer sentence on the endangering offense. The judge also imposed various fines and fees. Defendant was given jail credit for 1515 days of time served, which satisfied his period of parole ineligibility. Defendant was also made subject to the provisions of Megan's Law, except he was not required to submit to community supervision for life.
On appeal, defendant presents the following issues for our consideration:
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY FAILING TO GIVE THE JURY ANY LIMITING INSTRUCTION ON THE FRESH[-]COMPLAINT DOCTRINE.
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT EXCLUDING TESTIMONIES WHICH WERE INADMISSIBLE UNDER THE FRESH[-]COMPLAINT DOCTRINE.
A. ANGELA STANLEY'S TESTIMONY
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE O'NEILL IN VIOLATION OF MIRANDA.
A. VINELAND POLICE OFFICER, DETECTIVE O'NEILL, VIOLATED THE MIRANDA REQUIREMENT
B. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE O'NEILL IN VIOLATION OF MIRANDA WARNINGS.
THE PROSECUTOR'S SUMMATION AND DIRECT EXAMINATION EXCEEDED THE BOUNDS OF PROPRIETY AND THEREBY VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL WARRANTING A REVERSAL.
A. PROSECUTOR'S SUMMATION.
B. PROSECUTOR'S DIRECT EXAMINATION ...