January 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-04-0144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010 - Decided
Before Judges Cuff, Simonelli, and Fasciale.
Following a jury trial, defendant J.A.C. was convicted of three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts one, four, and six); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two, five, and seven); and one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count three).*fn1 The charges stemmed from defendant's sexual assault of C.A., the daughter of his ex-girlfriend, Carol.*fn2 Following trial, defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2b (count eleven) involving another female child, J.F.,*fn3 and the trial judge dismissed two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, (counts ten and twelve) pursuant to the plea agreement.
The judge sentenced defendant to a twenty-year extended term of imprisonment with a ten-year period of parole ineligibility on count three, and a concurrent ten-year term of imprisonment on the remaining counts. The judge also imposed the appropriate assessments and penalty.
On appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN SUMMARILY DENYING THE DEFENDANT'S REQUEST FOR A NON-JURY TRIAL WITHOUT CONDUCTING ANY HEARING RELATING THERETO, WITH ITS DECISION BEING EMBODIED IN A SINGLE-SENTENCE RULING.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING UNDULY RESTRICTING THE DEFENDANT'S ELICITATION OF TESTIMONY RELATING TO NUMEROUS INSTANT MESSAGE COMMUNICATIONS BETWEEN THE VICTIM AND VARIOUS ADULT MALES OF AN EXPLICIT SEXUAL NATURE.
POINT III: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
POINT IV: THE TRIAL COURT ERRED BY RULING THE STATE WOULD BE PERMITTED TO CROSS-EXAMINE ANY CHARACTER WITNESSES PRESENTED BY THE DEFENSE REGARDING THE DEFENDANT'S PRIOR CONVICTIONS WHICH THE COURT HAD PREVIOUSLY DEEMED INADMISSIBLE AS BEING TOO REMOTE IN THE EVENT THE DEFENDANT TESTIFIED.
POINT V: THE TRIAL COURT ERRED BY
FAILING TO MERGE COUNT IV (SEXUAL ASSAULT) INTO COUNT III (AGGRAVATED SEXUAL ASSAULT) AS WELL AS BY FAILING TO MERGE COUNTS II AND VII (ENDANGERING THE WELFARE OF A MINOR) INTO A SINGLE OFFENSE.
POINT [VI]: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We affirm defendant's convictions and sentence, except we remand for entry of a corrected judgment of conviction to reflect the mergers of count four with count three and count two with count seven.
Defendant and Carol began dating in February 1998. Carol had two children at the time: C.A. and a son. Defendant and Carol later had a child together. Defendant cared for the children while Carol worked as a bartender several nights a week until 2:00 a.m. The parties' relationship ended in August 2001, when defendant met another woman.
On March 23, 2003, Carol discovered sexually explicit instant message (IM) conversations between C.A. and adult males on her computer. C.A. initially denied knowledge of the IMs but eventually admitted she had written and received them.
As a result of the IMs, Carol contacted C.A.'s father, who resided in Indiana, and discussed having C.A. live with him. Carol then contacted C.A.'s school, resulting in a meeting on March 28, 2003, between C.A., her parents, C.A.'s teacher and a school counselor to discuss whether C.A. could finish the school year there. During the meeting, C.A. pled with her parents to allow her to finish the school year there.
C.A.'s parents disclosed to the teacher and counselor that C.A. had engaged in sexually explicit IMs with adult males. C.A. responded affirmatively when her teacher asked if anyone had ever touched her. She then detailed an incident that occurred in December 2000, when she was nine years old. Defendant invited her to lay on the couch with him and, as she fell asleep, placed his hand inside her underwear and touched her labia and clitoris for approximately five or ten minutes. C.A. "kind of yelled" at defendant and ran to her mother's bedroom to call her. Defendant, upset and crying, went into the bedroom, told C.A. not to call her mother, and said he would talk to Carol. As a result, C.A. did not call her mother. Defendant later told C.A. that he had told her mother what happened.
The next morning, Carol told C.A. that defendant disclosed what had happened the previous night, and assured C.A. that "everything was okay," and that C.A. should not worry. Assuming that defendant told her mother what had actually happened, C.A. did not discuss the incident further. However, according to Carol, defendant only told her that he and C.A. were on the couch when he, presumably asleep, put his arm around her daughter thinking it was Carol beside him. Defendant said he was sorry and, since he appeared upset, Carol thought nothing more about it.
C.A. later revealed that on one occasion, when defendant was using the computer, he invited her to sit on his lap. Defendant began rubbing her upper thigh and touched her "crotch area" on the outside of her clothes for approximately ten minutes. She also indicated that defendant exposed his penis on at least two occasions.
A forensic analysis of Carol's computer revealed sexually explicit IMs between C.A. and an adult male, which occurred after the last alleged incident of sexual abuse by defendant. The admissibility of the IMs was the subject of several pre-trial motions. The State had obtained an expert report, which concluded that C.A. suffered a vaginal injury consistent with digital penetration. Defendant sought to use portions of the IMs to show an alternate source of injury and that C.A. had fabricated the allegations.
The trial judge found that the IMs constituted "sexual conduct" as defined by N.J.S.A. 2C:14-7f and their prejudicial effect far outweighed any probative value, thus precluding their admission. However, mindful that C.A. had disclosed the sexual abuse after her mother discovered the IMs, the judge permitted defendant to mention them to show that C.A. may have fabricated the allegations in order to deflect criticism or discipline for having engaged in such behavior. Also, because the State intended to introduce expert evidence showing that C.A. suffered a vaginal injury consistent with digital penetration, the judge permitted defendant to use the following statement in one of C.A.'s IMs to show an alternate source of the injury: "damn and since I don't have anybody 2 fuck with I am soo horny I can't even masturbate all my dildos broke!!!!!"
Sexually explicit IMs between C.A. and sixteen other adult males were later discovered on C.A.'s computer, prompting another motion. The judge entered an amended order on June 27, 2007, ruling as follows:
The defense shall be permitted to show, on the issue of fabrication, that the allegations against the defendant did not arise until the victim had been officially confronted by her parents and school personnel of instant messages engaged in with 17 correspondents containing sexual fantasies.
Upon being confronted with these messages, the victim was told that she would be removed from school and would have to leave the State of New Jersey to live with her father in Indiana. It was at that point that the victim disclosed the alleged abuse by the defendant.
The judge later held a N.J.R.E. 104 hearing to determine pursuant to N.J.R.E. 403 whether the prejudicial value of the IMs outweighed their probative value. After the hearing, the judge ruled as follows:
The evidence of the [IMs] may be introduced for the limited purposes of:
1) Demonstrating the severity of the conduct in which . . . C.A. . . . was engaged and for which she was facing the serious punishment of being removed from the State of New Jersey and relocated to Indiana to live with her father; and
2) Showing motive of . . . C.A. . . . to fabricate the instant allegations to divert attention away from herself, at a time when she was being confronted by her parents and school personnel with the explicit [IMs] and facing serious consequences for the same.
An example of the evidence which may be elicited is as follows:
QUESTION: Did you engage in explicit
[IM] communications with slywease12000?
Such questioning may be conducted as to each of the seventeen (17) [adult males].
Subsequently, this court denied defendant's motion for leave to appeal. The State later argued to the trial judge that because only six of the IM conversants involved explicit conversation, the IMs between C.A. and the other eleven adult males were inadmissible. The judge agreed and amended his earlier ruling to permit defendant to only question C.A. about whether she had engaged in explicit IMs with six adult males.
At trial, C.A. testified that she had engaged in inappropriate and explicit IMs with six strangers on the internet in order to get her mother's attention, she was punished for her behavior, and her behavior was the topic of the meeting with her teacher and school counselor.
Defendant contends in Point I that the judge erred in denying his request for a non-jury trial without a hearing and statement of reasons. We review this contention under the abuse-of-discretion standard. See State v. Dunne, 124 N.J. 303, 309, 312 (1991). "[A]n abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Although defendant has a constitutional right to a jury trial, he may waive that right. See R. 1:8-1(a). Defendant, however, does not have a correlative right to a non-jury trial. Dunne, supra, 124 N.J. at 311--12. Nevertheless, the court cannot reflexively deny a defendant's request for a non-jury trial. Id. at 314.
[W]hen reviewing a request to waive a jury trial, a court should:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant's request in the circumstances of the case. . . . At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . , the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence. [Id. at 317.]
The clear import of Dunne and its progeny is that the presumption lies in favor of a jury trial. See id. at 314-16.
Here, the judge denied defendant's request for a non-jury trial based on his view that defendants accused of certain offenses, including sexual assaults, should be tried by a jury. Although the judge should have provided more detailed reasons, we are satisfied that the Dunne factors were met. Defendant was charged with first- and second-degree offenses. Thus, the presumption favors a jury trial. Id. at 317. Also, the State opposed defendant's request for a non-jury trial; the trial was of short duration; the case was not complex; the issues were amenable to jury resolution; there were no technical matters interwoven with fact; and the judge made all critical evidential rulings prior to trial. Consequently, we discern no abuse of discretion in the judge's decision to proceed with a jury trial.
Defendant contends in Point II that the trial judge erred by prohibiting him from introducing the verbatim content of C.A.'s IMs with the six adult males that describes her past sexual conduct. Defendant argues that the Rape Shield Law, N.J.S.A. 2C:14-7, does not preclude admission of these IMs because they are relevant and material to prove C.A.'s motive to fabricate the allegations and falsely accuse him, and their probative value substantially outweighs their prejudicial impact. The abuse-of-discretion standard governs our review of defendant's contention. See State v. Schnabel, 196 N.J. 116, 131 (2008).
"Under the Rape Shield Law, 'evidence of the victim's previous sexual conduct' is presumed inadmissible at trial." Id. at 128 (quoting N.J.S.A. 2C:14-7a). "Sexual conduct" is defined as "any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, sexual activities reflected in gynecological records, living arrangement and life style." N.J.S.A. 2C:14-7f.
Evidence of the victim's previous sexual conduct is admissible if it is relevant and highly material and meets the requirements of subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim . . . . [N.J.S.A. 2C:14-7a (emphasis added).]
N.J.S.A. 2C:14-7c states that "[e]vidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." N.J.S.A. 2C:14-7d states that:
[e]vidence of the victim's previous sexual conduct with the defendant shall be considered relevant if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of.
We agree with the trial judge that the IMs constituted "sexual conduct" as defined by N.J.S.A. 2C:14-7f. The content of the IMs, whether fact or fantasy, constitute conduct or behavior relating to C.A.'s sexual activities. See N.J.S.A. 2C:14-7f. Evidence of C.A.'s previous sexual conduct with persons other than defendant is not relevant to this case because there was no evidence or allegations of semen, pregnancy, or disease. N.J.S.A. 2C:14-7c; State v. Budis, 125 N.J. 519, 530 (1991); State v. Velasquez, 391 N.J. Super. 291, 321 (App. Div. 2007). Also, there was no previous sexual conduct between defendant and C.A. to which C.A. consented. See N.J.S.A. 2C:14-17d. Accordingly, the IMs with the six adult males that describe C.A.'s past sexual conduct were inadmissible.
Further, the content of the IMs was not relevant to the offenses charged. The IMs do not refer to defendant, the allegations against him, or C.A.'s motive to fabricate, nor do they disprove or suggest that C.A. lied, the sexual abuse did not occur, defendant is not the perpetrator, there was an alternative perpetrator, C.A. suffered prior sexual abuse by a third party, or she made prior false allegations of sexual abuse. See Schnabel, supra, 196 N.J. at 131; State v. Guenther, 181 N.J. 129, 154 (2004); Budis, supra, 125 N.J. at 534-35; State v. W.L., 278 N.J. Super. 295, 305-06 (App. Div. 1995). Only the existence of the IMs, not their content, was relevant to show that C.A. had a motive to fabricate the allegations because she was subject to punishment for them. Accordingly, the trial judge properly prohibited defendant's use of the verbatim content of the IMs.
Defendant contends in Point III that the prosecutor's inappropriate summation remarks denied him a fair trial. Defendant contends for the first time on appeal in Point IV that the trial judge erred in permitting the State to cross-examine his character witnesses about his prior convictions.*fn4 We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
The prosecutor's remarks to the jury to "imagine" what C.A. and her mother felt after the abuse occurred did not improperly inflame the jury and deprive defendant of a fair trial, nor did the prosecutor's remarks bolster C.A.'s credibility. Rather, the prosecutor's remarks were properly vigorous and forceful, State v. Smith, 167 N.J. 158, 177 (2001); State v. Frost, 158 N.J. 76, 82 (1999), and properly responded to defense counsel's summation remarks attacking the credibility of C.A. and her witnesses and implying that C.A. did not tell anyone about the sexual abuse earlier because she lied, State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001).
Finally, defendant placed his character in issue. Thus, the State was permitted to cross-examine defendant's character witnesses about whether they knew of defendant's prior convictions and, if not, whether or not defendant's prior convictions would alter their opinion of defendant if they had known. Remoteness of a conviction is not necessarily a consideration for opinion testimony like it is in reputation testimony. See State v. Campbell, 212 N.J. Super. 322, 326 n.3 (Law Div. 1986). Nevertheless, no error occurred because none of defendant's character witnesses were asked about any of defendant's prior convictions.
Defendant contends in Point V that the judge erred by failing to merge count four (second-degree sexual assault) with count three (first-degree aggravated sexual assault), and count two with count seven (both second-degree endangering the welfare of a child). Defendant argues in Point VI that his sentence is excessive. We agree with defendant's former contention and disagree with the latter.
Defendant's second-degree sexual assault conviction, N.J.S.A. 2C:14-2b, should merge with his first-degree aggravated sexual assault conviction, N.J.S.A. 2C:14-2a(1). State v. T.E., 342 N.J. Super. 14, 20, 22 (App. Div.), certif. denied, 170 N.J. 86 (2001); see also N.J.S.A. 2C:1-8a(1) and d(1). The two charges stemmed from one continuing episode, requiring the imposition of only one conviction and sentence. State v. McCauley, 157 N.J. Super. 349, 354-55 (App. Div.), certif. denied, 77 N.J. 500 (1978); see also State v. Whipple, 156 N.J. Super. 46, 53 (App. Div. 1978). Likewise, although endangering is a separate offense and does not merge with the sexual assault offenses, because both endangering charges in this case arise out of the same incident and were part of one continuous episode with C.A., they should merge with each other. See McCauley, supra, 157 N.J. Super. at 355.
Finally, we discern no abuse of discretion in defendant's sentence. See State v. Dalziel, 182 N.J. 494, 501 (2005). Defendant concedes he was subject to a discretionary extended-term sentence as a persistent offender. See N.J.S.A. 2C:44-3a. The sentencing range for an extended term for a first-degree crime is between twenty years and life imprisonment. N.J.S.A. 2C:43-7a(2). The judge sentenced defendant to the minimum twenty-year term in accordance with the sentencing guidelines; the record amply supports the judge's findings of aggravating and mitigating factors; and the sentence is not clearly unreasonable so as to "'shock  the judicial conscience.'" Dalziel, supra, 182 N.J. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Defendant's convictions and sentence are affirmed, and the matter is remanded for entry of a corrected judgment of conviction to reflect the mergers of count four with count three and count two with count seven.