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State of New Jersey v. Abdiel F. Avila

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 18, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ABDIEL F. AVILA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-10-3500.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011

Before Judges Lisa, Reisner and Ostrer.

Defendant was charged in a four-count indictment with offenses committed against his stepdaughter, C.H., when she was thirteen and fourteen years old. The first count charged first- degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), committed on a specific date, June 30, 2006. Count two charged second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, on that same date, arising out of the same conduct. Count three charged first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), committed on various dates between November 2005 and June 29, 2006. Count four charged a corresponding second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, on various dates during that same time period, arising out of the same conduct.

The jury found defendant guilty of all four counts. He was sentenced on count three to an extended term as a persistent offender, see N.J.S.A. 2C:44-3c and N.J.S.A. 2C:43-7a(2), of seventy-five years imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count one, defendant received a consecutive twenty-year sentence, subject to an 85% NERA parole disqualifier. On count two, defendant was sentenced to seven-and-one-half years imprisonment, concurrent to count one, and on count four, he was sentenced to ten years imprisonment, concurrent to count three. Therefore, defendant's aggregate sentence is ninety-five years imprisonment, of which he must serve 85% before becoming eligible for parole.

In the brief filed by his attorney, defendant argues:

POINT I

THE COURT ERRED IN PERMITTING FRESH COMPLAINT TESTIMONY IN THIS CASE. ALTERNATIVELY, THE COURT ERRED IN PERMITTING THE INTRODUCTION OF EXCESSIVE DETAILS IN THE FRESH COMPLAINT TESTIMONY OF M.A.

POINT II

THE COURT FAILED TO INSTRUCT THE JURY THAT BEFORE CONSIDERING DEFENDANT'S ALLEGED OUTOF-COURT STATEMENTS IT MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE AND THAT NONMEMORIALIZED ORAL STATEMENTS MUST BE REGARDED WITH CAUTION. THIS ERROR WAS COMPOUNDED BY THE COURT'S REFUSAL TO INSTRUCT THE JURY WITH THE FALSE IN ONE / FALSE IN ALL CHARGE. THESE ERRORS SERVED TO DEPRIVE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. Amends. VI and XIV; N.J. CONST. (1947) Art. I, pars. 1, 9 and 10. (Partially Raised Below)

POINT III

THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S ALLOWANCE OF HIGHLY PREJUDICIAL BUT IRRELEVANT EVIDENCE.

POINT IV

INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Partially Raised Below)

POINT V

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10.

POINT VII

THE IMPOSITION OF AN EXTENDED TERM OF LIFE WITH AN 85% PAROLE BAR, CONSECUTIVE TO A 20-YEAR NERA TERM OF IMPRISONMENT IS EXCESSIVE.

In a supplemental pro se brief, defendant presented the following additional arguments:

POINT I

DEFENDANTS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, P[A]RAGRAPHS 1 AND 22, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN THE STATE FAILED TO PROPERLY SEQUESTER THE ALLEGED VICTIM AND FURTHER DENIED THE DEFENSE TO DISQUALIFY HER AT TRIAL AND ALL OTHER WITNESSES, COURTS DENIAL TO THE DEFENSE ALLOW THE STATE'S USE OF THE INITIAL WRITINGS, STATEMENTS, RECORDS OF VITAL STATISTICS, STATES EXHIBITS BE ENTERED TO EVIDENCE, AND TESTIMONY OF THE ALLEGED VICTIM, AND OF ALL OTHER WITNESSES WHICH ALL WERE INADMISSIBLE AND FAILED TO BE RELIABLE TRUSTWORTHY, AND FAILED TO PROVE THE ELEMENTS OF THE OFFENSES.

POINT II

DEFENDANTS' DUE PROCESS RIGHTS AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED BY THE STATES' WITHHOLDING OF EVIDENCE, OMISSIONS OF THE FACTS AND MATERIAL FACTS, OF SUA SPONTE EVIDENCE AND TRUISM.

POINT III

DEFENDANT-APPELLANTS RIGHTS WAS CONSTITUTIONALLY VIOLATED UNDER THE THIRTEENTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHEN THE STATE LEGISLATURE ENCROACHED AND FAILED TO DEFINE THE "MAN" IN ANY OF THE STATUTES ADJUDICATED THE CONSTITUTIONALITY OF THE STATUTES ARE CHALLENGUED, ARE VAGUE AND HAVE A BROAD DEFINITION TO A 'PERSON' WHICH FAILED TO INCLUDE THE "MAN" THAT IS CURRENTLY IMPRISONED CONSTITUTING INTERNATIONAL HUMAN RIGHTS VIOLATIONS.

POINT IV

DEFENDANTS' 'CONSTITUTIONAL RIGHTS GUARANTEED BY THE 4th, 14th AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE STATE OF NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN BOTH THE LOWER COURT FAILED TO ESTABLISH JURISDICTION ON THE RECORD, THEREBY CAUSING IMPRISONMENT TO BE FALSE AND UNCONSTITUTIONAL.

POINT V

DEFENDANTS GUARANTEED RIGHTS UNDER THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPHS 1, 6, 7, 8, 9, 10, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO FATAL DEFECTS IN THE STATE GOVERNMENT'S CHARGING INSTRUMENTS.

POINT VI

DEFENDANT GUARANTEED RIGHTS UNDER THE IV AMENDMENT OF TE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPHS 1, 7, 8 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN THE STATE GOVERNMENT LACKED STATE LEGISLATIVE, TERRITORIAL OR ADMIRALTY JURISDICTION OVER THE LOCUS QUO.

POINT VII

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 AND 6 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO THE JURY'S VERDICT WAS A MANIFEST DENIAL OF JUSTICE UNDER THE LAW. POINT VIII

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO SENTENCING DISPARITIES.

POINT [IX]

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO SENTENCING IMPROPER IMPOSITION OF EXTENDED TERM AND ENHANCED SENTENCE.

We reject these arguments and affirm.

I

C.H. was born in 1992. Her parents divorced when she was one year old. In 2003, when C.H. was eleven years old, her mother married defendant. At that time, C.H. had been living primarily with her grandmother, but spent some time in her mother's home. After her mother's marriage to defendant, C.H. spent more and more time living in her mother's home, to the point where it was about eighty-five percent of the time.

The first inappropriate incident that occurred was not a subject of the indictment. Shortly after her mother and defendant were married, and while C.H. was still eleven years old, defendant invited her into his bedroom to watch television. They were alone in the house at the time. He began to tickle her, and in doing so was touching her chest. C.H. considered this inappropriate, and it made her uncomfortable. She left the room. Defendant told her not to tell her mother about it, saying it would cause her undue stress because she was pregnant. C.H. did not tell anyone about the incident until the time of her disclosure of the subsequent events that became the subject matter of the charges against defendant.

About two years later, in November 2005, C.H. was in the seventh grade. She was called down to the school office and told that her stepfather was there to pick her up because there was an emergency at home. While they were driving home, defendant said to C.H. "that we were going to f---." Before getting home, they stopped at a store. C.H. went into the store alone, leaving her backpack in the car. She later discovered in her backpack a typewritten letter addressed to her from the "Sisterhood." The letter informed her that she was required to undergo sexual training prior to turning eighteen years old, and part of that training was to have sex with someone older than her. The letter stated that the person in front of her at the time was responsible for her training. The letter made references to people that would appeal to youth, such as popular musical artists, and said that these people had undergone such training.

C.H. read the letter, which was three to four pages long, in defendant's presence. He told C.H. that she had to engage in sexual activities with him, and if she did not, people close to her, such as her mother and her godfather, M.A., "would probably get hurt." Those threats were also contained in the letter.

When they got home, defendant removed all of C.H.'s clothes and removed all of his clothes. He told her to lie on the couch in the living room. She hesitated and began to cry because she did not want to have sex with defendant, but he reiterated that people around her could get hurt if she did not acquiesce. He further told her that he did not want to have sex with her either, but it was an obligation of the Sisterhood.

Initially, C.H. laid on her back, but defendant directed her to roll over onto her stomach. C.H. believed he did this because he did not want to see her crying. Defendant then laid on top of C.H. and penetrated her vagina with his penis, which he continued to do for about fifteen minutes, after which he removed his penis and ejaculated on her lower back. C.H. immediately ran upstairs and took a long shower. She cried and felt disgusted. Defendant then took her back to school and told her they would continue to have sex until she turned eighteen. Defendant took the Sisterhood letter from C.H. and destroyed it.

This began a course of conduct that persisted on a regular basis over the next eight months. C.H.'s mother regularly left the home at about 7:30 a.m. to go to work, leaving defendant responsible to take C.H. to school at about 8:30 a.m. While alone with C.H. before school, defendant frequently attempted to have sex with her. She always said no and resisted, but she estimated that he succeeded about eighty percent of the time. When she resisted, defendant continually reminded her of the Sisterhood and that her family could be hurt if she did not have sex with him. Defendant repeatedly produced additional letters from the Sisterhood to reinforce C.H.'s obligation to have sex with him. After C.H. read them, defendant always destroyed the letters.

At some point, C.H. began to doubt that the Sisterhood was real, or that anything bad would actually happen to her family if she stopped having sex with defendant. Then, defendant went to Maryland to pick up his daughter from a prior relationship, who was about two years younger than C.H., to bring her back to New Jersey for a visit. C.H. and her stepsister had a close relationship. The stepsister told C.H. that while she and her father were driving to New Jersey, "supposedly someone shot his tire." C.H. did not believe that her stepsister would lie to her. As C.H. described it, her stepsister told her "it was true that the car tire, sound[ed] like somebody shot the tire." Defendant told C.H. that this was the work of the Sisterhood, and "[b]ecause [he] was denied [sex by her] so much that they got mad and they shot his tire." This reinforced C.H.'s belief in the Sisterhood and the prospect that if she refused to have sex with defendant her family members would be harmed. Therefore, she continued to comply with defendant's sexual demands.

In June 2006, C.H., then fourteen years old, completed the seventh grade. She worked over the summer in a store owned by her godfather, M.A., who was the cousin of C.H.'s mother. C.H. had a close relationship with M.A.

On June 30, 2006, C.H.'s stepsister was staying with C.H.'s family for a visit. On that morning, C.H.'s mother woke up C.H. and directed her to help defendant with something, after which C.H.'s mother left to go to work. C.H.'s stepsister was sleeping in the bed next to C.H. C.H. immediately turned off the window air conditioning unit in the room, but defendant then came in and turned it back on. He then directed C.H. to the bedroom he shared with C.H.'s mother. C.H.'s baby sister was also asleep elsewhere in the house. Defendant locked the door and demanded sex from C.H.

C.H. became hysterical and violent and began screaming. Apparently no one heard her because of the noise from the air conditioners which were on "high" in both bedrooms. Defendant undressed C.H. and told her to lay on the bed. Initially, C.H. laid on her back, but defendant turned her over onto her stomach, pushing her face into the pillow, apparently to stifle her crying. In the course of this episode, he tried to force C.H. to fellate him (which he had also attempted on other occasions). He also placed his mouth on her genitals. Defendant then proceeded to penetrate C.H.'s vagina with his penis. After a time, he removed his penis and ejaculated on her back. C.H. ran out of the room and took a long shower. She cried in her bedroom before dressing for the day.

Defendant then drove C.H. to M.A.'s store, where C.H. heard a radio program about sexual assault victims who wished they had told someone about their ordeal. C.H. then wrote a note to M.A., which stated:

I have a secret! That's killing me! Don't tell! I mean no one! I have By some1 but all I can say I was Blackmailed and I am not a virgin anymore! Well he waz lookin at me kind of funny for a while and this morning when my mom left and my stepsister was sleeping he knocked on my door and he waz like come here so I went and he made me and he said I cant tell cuz some will get hurt. And this is not the first time. I argued while it was happening and waz kissing me and he was cleaning my tears at the same time. I feel like shit rite now. Please don't tell! Pleaes I am not ready to tell! He is Abdiel!

C.H. went into the bathroom in the store and was crying. Another store employee knocked on the door and asked what was the matter. After some delay, C.H. allowed her co-employee in and told her why she was crying. That employee called M.A. and asked him to come to the store immediately. When he did, C.H. gave him the note, and the two of them cried together.

Other family members were then notified, as were the police and the Division of Youth and Family Services. C.H. gave a statement to the police and cooperated in the investigation. C.H. was taken to the hospital and examined. With the permission of C.H.'s mother, the police searched the home. They seized a comforter that was on the bed in the bedroom shared by defendant and C.H.'s mother. The comforter contained semen, which proved to be from defendant. No fluids or other forensic evidence matching C.H. were found on the comforter.

Defendant did not testify at trial. The defense presented through his attorney was a denial that any of these incidents ever occurred. The defense attacked C.H.'s credibility, emphasizing that she should not be believed because, by her account of the events, she did not disclose their occurrence for many months.

II

Over defendant's objection, the judge allowed C.H.'s godfather, M.A., to read C.H.'s note to him to the jury. This evidence was admitted under the fresh complaint doctrine. Defendant argues that this was error. He contends that no fresh complaint evidence was necessary because C.H. wrote the note and reported the alleged sexual improprieties on the same day that the last incident occurred. Defendant further argues that even if fresh complaint evidence could be allowed, the note contained more detail than is permitted for this kind of evidence. We do not agree with either argument.

The fresh complaint doctrine permits the introduction of evidence "that a victim of a sexual assault spontaneously complained of the crime within a reasonable amount of time to someone the victim would normally turn to for help and advice." State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.) (citing State v. Hill, 121 N.J. 150, 163 (1990)), certif. denied, 151

N.J. 466 (1997). Allowing "fresh complaint" evidence "will forestall a jury from assuming that no evidence of complaint was introduced because no complaint was made." Ibid. (citing State v. Balles, 47 N.J. 331, 338 (1966), cert. denied and appeal dismissed, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)). The narrow purpose of the fresh complaint evidence is to allow the State to negate the natural inference a jury might draw that the victim was not sexually assaulted because of her silence. Hill, supra, 121 N.J. at 163.

However, consistent with this rationale, details of the complaint are not admissible. Ibid. Therefore, details of the offense should be restricted to those "minimally necessary to identify the subject matter of the complaint." Scherzer, supra, 301 N.J. Super. at 419 (citing State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 588, 589 (1988)). Besides being reasonably contemporaneous, the complaint must also be "both spontaneous and voluntary, factors which may be negated if the complaint results from interrogation." State v. Pillar, 359 N.J. Super. 249, 282 (App. Div.), certif. denied, 177 N.J. 572 (2003). Admission of fresh complaint evidence is in the discretion of the trial court. Hill, supra, 121, N.J. at 170.

We find no mistaken exercise of discretion in admitting fresh complaint evidence in this case. A major theme of the defense was that C.H. should not be believed because of her delayed disclosure of these ongoing incidents occurring on a regular basis over many months.

For example, while cross-examining C.H., defense counsel established that she had a close relationship with her mother, an uncle, and her godfather, M.A., and that she would typically discuss things about her personal life with them. Counsel then pointedly asked C.H. whether she told any of these three individuals or any friends or anyone else about the incident, to which C.H. responded in the negative. Counsel then asked: "You kept it all to yourself. Is that accurate?" C.H. answered affirmatively.

After questioning C.H. about the first incident of sexual intercourse with defendant, when he picked her up from school and then returned her to school after the incident, defense counsel questioned whether C.H. had friends at school, implying that it would have been logical for her to have told someone of the incident. Throughout cross-examination of C.H., defense counsel pointed out that she had not told her mother, her stepsister, her teachers, her uncle or anyone else about these incidents. Counsel also asked C.H. whether she would see her godfather, M.A., every day of the week, to which she responded affirmatively, thus implying that she should have told him something sooner than the day of the final incident. Defense counsel asked C.H. this question: "According to you you kept it bottled up inside?" C.H. answered affirmatively.

During summation, defense counsel hammered home the point:

[C.H.]. She testified. She went on about how he did this horrendous act to her. How it started, I guess, back when her mother started dating [defendant]. But no one was ever told that. Ladies and gentlemen of the jury, I argue to you she's not three years old. She's not four years old. She's not even six or seven. From what I recall she was about 12 when this act allegedly occurred. She didn't tell anyone at all? Not even a close friend? She goes to school. Not even close buddies? Hey listen. Something happened but don't tell anyone. It's between us. Anyone? She has

[a] close relationship with her mother. She indicated that to you. She didn't tell her mother anything?

What about [her uncle]? I asked him the same question I asked [her godfather, M.A.]. What's your relationship to [C.H.]? How close is it? Tell me how close that relationship is. Does she confide in you? Maybe you guys don't go to parties, you go to church. What do you guys do? Very clearly both individuals said the following: She's like a daughter to us. And she said likewise. Like a father. We treat her like our own. She's our daughter.

And this incident is alleged to have occurred since the age of 12 all the way out to the age of 14 and not one even a hint? Something to someone? Diaries? I don't have anything, except, of course, on June 30, 2006, a letter.

The defense most certainly sought to persuade the jury that it should draw a negative inference from C.H.'s silence over the many months she said these incidents regularly occurred. The fresh complaint evidence was properly admitted to negate such an inference.

We are also satisfied that the substance of the fresh complaint evidence did not exceed the limited bounds of detailed information permitted for such evidence. C.H.'s letter to her godfather simply stated that she had been sexually assaulted several times, had been threatened not to tell anyone about it, and that her abuser was defendant. The letter did not describe the details of repeated assaults. C.H. wrote the letter spontaneously. It was not the result of interrogation. It was written in her own handwriting and using her own words.

III

In Point II, defendant argues that the jury instructions were deficient because of two omissions: (1) For the first time on appeal, defendant argues that the judge should have sua sponte instructed the jury that in considering defendant's outof-court statements, it was required to find that the statements were made and were credible, as required by State v. Hampton, 61 N.J. 250 (1972), and that they should be considered with extreme caution, as required by State v. Kociolek, 23 N.J. 400 (1957).

(2) Defendant further argues that the judge erred in refusing his request to give a "false in one, false in all" charge with respect to C.H.'s testimony. We find no error in these respects.

As to the first argument, because there was no request for a Hampton/Kociolek charge, reversal of defendant's conviction would only be warranted if any such error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result is sufficient; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of a jury charge, plain error must constitute such prejudice to a defendant that is "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

We find no error, let alone plain error, in the failure to give a Hampton/Kociolek charge. The statements to which defendant refers were not statements defendant gave to the police or made to anyone else after the criminal events. They are the very statements defendant made to C.H. during the commission of the crimes.

Appellant points to only two statements upon which he bases this argument. The first was his statement to C.H. during the tickling incident when she was eleven years old, and when defendant told C.H. not to tell her mother, because she was pregnant and it would be too stressful. The second statement was when defendant picked C.H. up from school during the first incident involving sexual intercourse, and when he told C.H. in the car that "we're going to f---."

These are simply not the kind of statements to which a Hampton/Kociolek charge applies. They are part of the criminal act itself, not statements made to the police in a custodial setting or other similar statements. State v. Feaster, 156 N.J. 1, 71 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). These "statements" were merely part of C.H.'s description of the sexual assaults defendant perpetrated against her over a period of time. The statements were not offered to prove the truth of the matters asserted. They were offered as part of C.H.'s account of the events.

Further, there was no genuine issue here regarding the contents of what defendant said. There were no nuances of language that might be susceptible to varying interpretations, depending upon the precise content of the statements. Thus, the jury was simply asked to determine, based upon its assessment of C.H.'s credibility, whether the events, including the statements she attributed to defendant, actually occurred. See State v. Baldwin, 296 N.J. Super. 391, 401-02 (App. Div.), certif. denied, 149 N.J. 143 (1997).

We are also unpersuaded by defendant's argument that the court erred in refusing to charge "false in one, false in all" with respect to C.H.'s testimony. This charge may be given, in the court's discretion, when the court reasonably believes that a jury may find a basis for its application. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). See also State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.) (noting that the charge is appropriate when "a witness intentionally testifies falsely as to some material fact"), certif. denied, 33 N.J. 109 (1960).

The record contains no evidence to establish that C.H. intentionally testified falsely. Defendant had a full opportunity for cross-examination, and the jury received a detailed charge, informing the jurors that they were the judges of the facts, and, as part of their factfinding function, they should assess the credibility of the witnesses who testified. The judge concluded his credibility charge by instructing the jurors to weigh the testimony of each witness, and, through the weighing process they "may accept all of it, a portion of it, or none of it." The judge acted within his discretion in declining to false in one, false in all charge with respect to C.H.

IV

Defendant's arguments in Points III, IV, V and VI lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We provide these brief comments.

Defendant argues that the presence of his semen on a comforter in the bedroom he shared with his wife was irrelevant and highly prejudicial because there were plausible, innocuous explanations for it. This evidence was relevant because it had "a tendency in reason to prove or disprove any fact of consequence to a determination of the action." N.J.R.E. 401. More particularly, it was relevant as tending to establish that defendant ejaculated at the very location claimed by C.H. during the final assault. Defendant had the opportunity for cross-examination and argument as to other explanations. No objection was raised at trial, thus implicating the plain error standard. We find no error, and certainly no plain error, in admitting this evidence.

For the first time on appeal, defendant argues that three comments by the prosecutor, one in her opening and two in her summation, constituted reversible error. At the time of trial, C.H. was seventeen years old. The prosecutor began her opening (after some brief introductory comments) with this:

[T]here's usually maybe two things a 17-year-old girl has her mind on. The first is going to the prom and the second is learning how to drive. But [C.H.] does not have that luxury today because today what she's worried about is walking in here and telling a room full of strangers about the most embarrassing and degrading things that happened to her in her entire life.

The prosecutor began her summation by referring to defendant as someone who "stood in a church where he . . . married [C.H.'s mother] and he promised probably that he would love her and honor her and cherish her and instead what he chose to do was to sexually abuse [her] young daughter." Further along in her summation, the prosecutor said defendant "engaged in a campaign of terror against a child."

Because defendant did not object to any of these comments, we are guided by the plain error standard, which we have previously described. The absence of an objection reflects that, in the context of the trial, defense counsel did not deem the comments prejudicial. State v. Frost, 158 N.J. 76, 83-84 (1999). Further, by failing to object, the defense deprived the court of the opportunity to consider the appropriateness of the comments and, if deemed inappropriate, order them stricken and provide the jury with a curative instruction. Id. at 84.

We reject defendant's argument that these comments had the clear capacity to inflame the jury and deprive him of a fair trial. The comment during the opening statement merely described the unfortunate circumstance in which C.H. found herself, having to testify about being sexually assaulted, a circumstance unfamiliar to the vast majority of children her age. See State v. Atkins, 405 N.J. Super. 392, 400-01 (App. Div. 2009) (rejecting a similar argument in which the prosecutor stated that the seven-year-old victim of a sexual assault would be testifying, and that this was something a seven-year-old child should never have to do, and that the defendant stole the victim's innocence).

The first complained-of summation comment was related to the trial evidence. The prosecutor pointed out that defendant utilized C.H.'s love for her family as a means of facilitating his desire to sexually assault her. The other summation comment was also properly related to the evidence. Indeed, a "campaign of terror" was a fair description of defendant's course of conduct toward C.H., and it was not unduly inflammatory.

Defendant next argues that the jury instruction regarding his choice not to testify, to which he did not object, constituted plain error because it concluded with the following: "[Defendant] is presumed innocent even if he chooses not to testify." (emphasis added). This issue has been settled by the recent decision of our Supreme Court rejecting this precise argument. State v. Miller, ____ N.J. ___, ___ (2011) (slip op. at 20-21).

Finally, because we have determined that none of the issues raised in the brief filed by defendant's appellate counsel constituted error, there is no basis for consideration of the cumulative error doctrine.

V

Defendant argues that his sentence is excessive. In particular, he claims that the judge did not properly analyze and weigh the various aggravating factors found to apply. He further argues that the judge erred in imposing consecutive sentences on counts one and three, and failed to consider the real-time consequences of these consecutive NERA sentences. Although the sentence imposed is indeed harsh, we are satisfied from our review of the complete record of this case, including the judge's well-articulated statement of reasons for the sentence, that the judge followed the sentencing principles set forth in the Code of Criminal Justice and did not exceed the bounds of his discretion.

The judge found the following aggravating factors to apply: (2) the gravity and seriousness of the harm inflicted on the victim, (3) the risk that defendant will commit another offense, (6) the extent and nature of the defendant's prior criminal record, and (9) the need for deterrence. See N.J.S.A. 2C:44-1a(2), (3), (6) and (9). The judge found no mitigating factors. Defendant does not dispute the applicability of these aggravating factors. However, relying on State v. Hodge, 95 N.J. 369, 379 (1984), and State v. Roth, 95 N.J. 334, 355 (1984), defendant argues that the sentencing scheme in the Code is offense-oriented, and the primary emphasis should be on the gravity of the offense, and not the blameworthiness of the offender. He argues that only aggravating factor two is offense-oriented, whereas the remaining aggravating factors found by the judge are offender-oriented. He therefore concludes that the latter three factors should have been given low weight. He argues that the judge deviated from these principles because he "made no effort to consider whether there were individual circumstances that distinguished this particular assault and rendered it more, or less, serious than other assaults." We do not agree.

In discussing factor two, the judge reflected upon his observations of C.H. as she testified and found that "[s]he was obviously grievously harmed emotionally." The judge could not "imagine any more serious or grave harm inflicted upon a young lady such as she and the harm this defendant inflicted upon her." The judge gave "heavy weight to aggravating factor two, because of the nature and circumstances of the offense and the impact upon the [victim]."

Implicit in the judge's finding on factor two is the applicability of aggravating factor one, the nature and circumstances of the offense, the role of the actor therein, and whether the offense was committed in an especially heinous, cruel or depraved manner. See N.J.S.A. 2C:44-1a(1). This factor is clearly offense-oriented. The applicability of this factor is most obvious with respect to count three, which charged defendant with committing multiple aggravated sexual assaults against C.H. over an eight-month period. Although only one such crime would suffice to establish guilt under this count, the evidence established that defendant committed many first-degree crimes encompassed by this count. The sheer number of separate crimes committed under this single count greatly exceeds that which is necessary to establish guilt of first-degree aggravated sexual assault, thus making the offense circumstances under this count much more egregious than minimally necessary for conviction.

Further, the elements of N.J.S.A. 2C:14-2a(2)(a) require only that (1) the victim is at least thirteen but less than sixteen years old, (2) the actor is related to the victim by blood or affinity, (3) the actor commits an act of sexual penetration, and (4) the actor acts knowingly. Defendant's conduct here was more egregious than minimally necessary to satisfy these elements. He used threats and coercion against this vulnerable and impressionable victim over whom he exercised supervisory control and power. He went to great lengths to fabricate the "Sisterhood" scenario, constantly reinforcing in C.H.'s mind her obligation to comply with his demands to avoid harm to members of her family. These offense circumstances applied to all of the crimes committed under both counts one and three.

We have no hesitancy in concluding that the offense circumstances here were particularly heinous and cruel, and committed in a depraved manner. These circumstances undoubtedly contributed to the severe emotional harm caused to C.H., as articulated by the judge in his discussion of aggravating factor two. The offense-oriented emphasis prescribed by the Code was properly considered and applied in the determination of defendant's sentence.

The judge also articulated a proper basis for imposing consecutive sentences on counts one and three, in accordance with the principles of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The judge also considered the real-time consequences of the overall sentence and articulated well-founded reasons for determining its appropriateness in this case.

Accordingly, we are satisfied that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that the applicable sentencing guidelines were followed, and that the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); Roth, supra, 95 N.J. at 364-65.

VI

Finally, we have reviewed the arguments presented in defendant's supplemental pro se brief. We find these arguments lacking sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20110418

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