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State of New Jersey In


April 27, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FJ-15-1217-09; FJ-15-200-09; and FJ-15-201-09.

Per curiam.



Submitted February 28, 2011

Before Judges Kestin and Newman.

Tried by a judge, B.H. (the juvenile) was adjudicated delinquent for second-degree sexual assault, N.J.S.A. 2C:14-2c(1), petty disorderly persons defiant trespass, N.J.S.A. 2C:18-3b, and disorderly persons underage consumption of alcohol, N.J.S.A. 2C:33-15a. The trial judge found the juvenile not guilty of third-degree terroristic threat to kill, N.J.S.A. 2C:12-3b, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The juvenile later pleaded guilty to a separate disorderly persons offense of defiant trespass under Docket No. FJ-15-200-09, and criminal mischief, under Docket No. FJ-15-201-09.

The trial judge sentenced B.H. to serve a three-year term of detention for sexual assault, concurrent terms of thirty days for two counts of defiant trespass, and two concurrent terms of sixty days for criminal mischief and underage consumption of alcohol. B.H. appeals. We affirm.

The incident which gave rise to the criminal charges arose out of a party of high school students at the Middletown house of S.E.'s grandmother. S.E. was the best friend of the victim, H.S. The party took place while the grandmother was away in North Carolina, and no one had permission to be in her house while she was absent. H.S. was fourteen years old, drank alcohol excessively to the point where she felt intoxicated, and threw up. Later, S.E.'s uncle, who was responsible for S.E. while S.E.'s grandmother was away, arrived at the house, ordered everyone to leave, and took S.E. home with him. H.S. went to a nearby parking lot by the A&P supermarket with a group of four boys, P.C., K.T., J.F., and B.H. They returned to S.E.'s grandmother's house. S.E. entered the house to retrieve her shoes, but could not locate her cellular telephone. She then went to the backyard. H.S. separated from three of the other boys and was alone with B.H. near a large tree in the backyard.

According to H.S., B.H. pinned her against the tree, unbuckled her belt, and pulled down her pants. H.S. told B.H. to stop and attempted to flee, but was not physically able to do so. According to H.S., B.H. penetrated her vagina with a thrusting motion. The episode lasted five to ten minutes. During the assault, the juvenile ignored her telling him to stop and told her to "spread [her] legs or [he would] fucking kill [her]." She cried and B.H. would not stop until J.F. appeared and caused him to stop.

When H.S. was able to pull up her pants and saw P.C., K.T., and J.F. standing nearby, she walked over to them. B.H. told her not to tell anyone what had happened because he did not want his girlfriend to find out. He also told her that he was someone else by providing a false name. The victim knew him and was certain that he was the person who forcibly raped her. P.C. and K.T. accompanied the victim back to her house, which was only a few blocks away.

When H.S. got home, she took off her clothes and went to bed. Her vagina was hurting. The next morning she washed the clothes she had worn the night before and saw drops of blood inside her pants. That same morning, H.S. text messaged S.E. and told her that she was raped by the juvenile. The victim also told her friends, S.B. and K.K., about the sexual assault.

S.E. testified that she had hosted a party at her grandmother's house, attended by twenty-five to thirty teenagers. She indicated she received an instant message from the victim the following morning, indicating that the juvenile had raped her. The following day, S.E. went outside to clean the backyard and noticed that the gravel and sand around the tree where her friend reported to have been sexually assaulted appeared to be "pushed back and out of place." S.E. also found a navy blue Yankee hat at the base of the tree, which the juvenile had worn the night before.

S.B. testified that she attended the party, but left before S.E.'s uncle arrived. She recalled the juvenile was at the party, was wearing jeans, a T-shirt, and a blue Yankee hat. She acknowledged that she received a text message from the victim, stating that she was raped the previous night, and that the victim identified the juvenile as the person who raped her.

Approximately a week later, K.K.'s father, a police officer, learned of the sexual assault. He contacted S.B.'s mother and told her that the sexual assault had to be reported to the victim's parents and the police. The victim and her mother went over to S.B.'s house at which time the victim's mother was told about the details of the sexual assault. The victim's mother contacted the police and reported the sexual assault.

K.T. and P.C. were both at the party, drinking alcohol, and observed the victim to be "wasted." K.T. and the juvenile had been friends for approximately nine years. K.T. indicated that after the party was broken up, they had walked over to an A&P store, only to return to the house where the party had been held to retrieve some personal items left behind. K.T., along with P.C., J.F., the victim, and the juvenile, remained in the backyard.

K.T. saw the juvenile and the victim were "hooking up" or "making out." K.T., along with P.C. and J.F., went to the side of the house to allow them some privacy. Some minutes later, they decided to sneak up on the juvenile and H.S. K.T. saw the juvenile standing in front of and facing the victim, who was backed up against the large tree. As K.T. got closer, he heard the victim yell, "No," and "Stop," approximately five to ten times. Despite what the victim screamed, the juvenile did not pull away. Based on his observations, K.T. thought that whatever was going on was not consensual and he "thought[] [the victim] was being raped."

J.F. stepped in and broke up what was happening between the juvenile and H.S. While J.F. began to argue with the juvenile, attempting to find out what had happened, K.T. and P.C. approached the victim to see if she was alright. K.T. overheard the juvenile say, "his name was Chris or something like that," which led K.T. to believe that the juvenile, "probably did something wrong" because "that obviously[] wasn't his name."

P.C. also testified that he was at the party. He had known the juvenile all of his life. He indicated the victim was at the party and appeared intoxicated. P.C. stated that after the party broke up and they returned to S.E.'s backyard, he noticed that the juvenile and H.S. were "hooking up," meaning kissing. He walked away from the juvenile and the victim, but later decided to go and see what they were doing. When he was closer, P.C. heard the victim repeatedly yelling, "Stop." P.C. noticed they were on the ground and positioned "somewhat up against the tree," that the juvenile was on top of the victim, and that they were "moving around." According to P.C., "it did kind of look like they were having sex."

P.C. testified that he saw the victim with her pants down around her ankles, that she was crying hysterically as she got to her feet, and pulled up her pants. P.C. also heard J.F. yelling at the juvenile saying, "what the fuck did you just do" and "[B.H.], you're an idiot." The juvenile was heard to respond, "I'm not [B.H.]. I'm Chris."

J.F. testified that he attended the party with the juvenile, and they had been good friends since the fourth grade. He recalled that the juvenile was wearing a blue Yankee hat that night. He observed that the victim appeared to be intoxicated and that the juvenile, according to J.F., told him that he was going to try and "hook up" with the victim because "she was really drunk." J.F., like P.T. and K.T., saw the juvenile "humping" the victim and heard the victim repeatedly say, "Stop." He also saw that the victim was crying and appeared scared. Based on what he saw, J.F. believed that the juvenile was sexually assaulting the victim. When he got closer, he saw that the juvenile's pants were down to his lower hips and he was pulling up his pants. When he asked B.H. what he was doing, the juvenile responded, "Nothing. Don't worry about it." J.F. then asked H.S. what happened. She told him that the juvenile raped her, and she told him to stop, but he "just kept going."

J.F. and the juvenile walked back to J.F.'s house where the juvenile was staying. On the way there, the juvenile told J.F. that he "messed up" and that "he wished it never happened, wished he never went to the party." He admitted that he "raped" the victim.

Two days later, the juvenile told J.F. that he was worried about the police getting involved, and asked J.F. to lie to the police about what had happened that evening.

After the juvenile was arrested and placed in custody, J.F. received a letter two months prior to trial. In the letter, the juvenile claimed, "I'm a hundred percent innocent. You know this, [J.F.], LOL." "LOL," as J.F. explained, meant "laugh out loud." J.F. considered writing "LOL" was an attempt by the juvenile to "be[] sarcastic" and that B.H. "thought it was funny."

In an exhaustive oral decision, the trial judge made the following findings of fact in connection with the second-degree sexual assault count:

The first Count of the Complaint charges that on December 26th, 2008 at 2230 within the jurisdiction of Court [B.H.] committed a sexual assault by committing an act of sexual penetration on [H.S.], then fourteen, by using physical force and coercion, specifically by forcing the victim's pants to her ankles, committing the sexual penetration with physical force.

I am satisfied from all of the evidence in this case that the State has met its burden of proving beyond a reasonable doubt the elements of this Statute. . . . The victim here -- I appreciate the argument that there isn't any medical testimony, there isn't any forensic evaluation done, we don't have the blood from the pants. But the victim testified that her pants were pulled down more than once over her objection, over her opposition; that the defendant inserted his penis in her vagina; that she was a virgin prior to this incident taking place; that she felt pain; that she bled; that she had blood on her clothing; and that he thrusted several times into her after placing his penis in her vagina. I find that testimony to be credible from [H.S.] herself and I also find that the testimony was corroborated by the testimony of [J.F.] with regard to the thrusting and humping perhaps up to fifteen times. Other witnesses who testified saw [B.H.] pulling up his zipper or pulling up his pants or fixing his pants. That's certainly consistent with having his penis exposed and doing what it is alleged that he had done here. All the witnesses, [K.T.], [P.C.], and [J.F.], corroborated that [H.S.'s] pants were down to some extent either to her mid thigh or down to her ankles. [H.S.] within a very short period of time confided in her best friends, people that she would typically trust, that she was raped, that she was penetrated, that she was experiencing pain, and that she had bled. All of that causes me to feel that there is proof of penetration beyond a reasonable doubt here and I will make that finding.

It's also my finding that the penetration was by way of use of physical force and coercion. The credible evidence is that prior to December the 26th of 2008 there was no relationship, romantic or otherwise, between [B.H.] and [H.S.]. There was no contact between [H.S.] and [B.H.] prior to the party being broken up on December 26th by the uncle. The testimony of [H.S.] that she was forced against a tree by defendant's body and held by [B.H.] by his body and by his hands on her shoulders against that tree is credible and believable and corroborated by other witnesses. The victim credibly in my mind denies ever consenting to this. There was an observation by some witnesses of some kissing and hugging between [B.H.] and [H.S.], but clearly kissing and hugging does not give [B.H.] the green light to proceed to the next step and have sexual intercourse with [H.S.]. She clearly indicated, "No,

[S]top," multiple times, corroborated by multiple witnesses. She was observed by all who saw her to be crying, to be upset, to be scared, to be afraid. The defendant, [B.H.], was observed to be pulling [H.S.'s] pants down, [H.S.] pulling her pants up, resisting his efforts to get her pants down. The testimony of all of the witnesses that [B.H.] had identified himself shortly after this took place after he was separated from [H.S.] by his best friend [J.F.], identifying himself as Chris or Pat clearly in the Court's mind is an indication of knowledge of wrongdoing or guilt, trying to conceal one's identity. The fact that [J.F.] had to actually physically remove [B.H.] from [H.S.] clearly indicates to me that there's no consent here, that there was physical force and coercion utilized here.

There was a lot made of the status of the ground in the area of this tree and gravel that was disturbed allegedly as a result of this struggle or incident that was taking place by the tree. I accept the fact that before December 26th, before this party, everything was neat and tidy. [S.E.'s grandmother] seems to be a very neat and tidy person, and I believe her when she says that everything was in tiptop shape when she left for North Carolina and I accept that things were a little disheveled or moved about afterwards. While it's not dispositive of consent or lack of consent, or coercion or lack of coercion, it is consistent with the allegations that are being made with regard to a forcible rape against the will of the victim without her consent.

Also the hat that was identified and marked in evidence that was recovered by the tree I'm satisfied is the hat that [B.H.] was wearing when he was at the party that particular evening. There's no question in my mind that the person who committed this act was, in fact, [B.H.], the juvenile who appears before me today. It was not Chris, or Pat, or some other individual.

The letter sent by [B.H.] to [J.F.] while he was in the Detention Center, the reference to LOL, laughing out loud, after saying that he's a hundred percent innocent, I find is sarcastic, was intended to be somewhat of a joke. I interpret the statement really almost as a confession by [B.H.] of his guilt with regard to this. He's sending this letter to his best friend, the individual who had to physically separate him from [H.S.] on the evening in question, the person that perhaps he confessed to and prayed with or about on the way home. It's clear that [B.H.] knows what he did, knows that [J.F.] knows what he did, having observed a lot of it take place, and the LOL, the laugh out loud, really was intended to be sarcastic and, as I indicated, I interpret that almost as an acknowledgement that [B.H.] did do something against the law with regard to [H.S.] that particular evening.

As I indicated, there was testimony about kissing and hugging, the victim and [B.H.] before. It probably did happen. You know, there was some drinking. But as I indicated before, that does not permit [B.H.] to take liberties beyond what [H.S.] is consenting to, and she clearly did not consent to sexual intercourse, to being raped on that particular evening. She made it abundantly clear to [B.H.] that she did not want this to continue and in spite of her making it abundantly clear, [B.H.] did continue thrusting multiple times into her after inserting his penis into her vagina.

There isn't any evidence presented with regard to severe personal injury, and that is something that is proven basically in the negative, as commented on by the Prosecutor in summation.

I do find that all of the elements of Count 1 have been proven beyond a reasonable doubt. It is my finding that [B.H.] is guilty of committing a second degree sexual assault against [H.S.] on December 26th, 2008.

The trial court also made detailed findings with respect to the defiant trespass charge, petty disorderly persons offense charge, and the disorderly persons underage consumption and possession of alcohol charge, which are not challenged on appeal.

On appeal, defendant raises the following issue for our consideration:


Const. AMENDS. VI, XIV; N.J. Const. (1947), Art. I, Pars. 1, 9[,] 10.

The juvenile contends that the trial court precluded counsel from impeaching the testimony of the State's witness, J.F., by barring him from inquiring about J.F.'s probationary status. J.F. was serving a probationary term for criminal mischief and had been placed on probation on December 1, 2008, before the incident of December 26, 2008. Because J.F. practically admitted to underage drinking and criminal trespass while at the party on December 26, 2008, but was not charged with a violation of probation, defense counsel sought to cross-examine him on that basis to establish any interest in cooperating with the State in its prosecution of B.H.

In denying the defense the opportunity to seek such impeachment, the trial court would not allow "a fishing expedition." The trial judge believed that defense counsel had to demonstrate that J.F. received some preferential treatment from probation. Absent that, the trial court barred that line of cross-examination, which the juvenile urged was necessary to challenge credibility by revealing potential bias, prejudice, interest, or an ulterior motive on the part of J.F. The juvenile contends that this constitutes reversible error and requires a new trial.

The State agrees that the trial court committed error "by improperly restricting the juvenile's cross-examination of a State's witness, J.F.," but contends that "due to the presence of substantial evidence of the juvenile's guilt from other witnesses and the cumulative nature of J.F.'s testimony, the State submits that the error was harmless beyond a reasonable doubt." We agree.

A trial court's "constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to harmless-error analysis." Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). See, e.g., State v. Macon, 57 N.J. 325, 337-38 (1971). Under the harmless error standard, courts will "disregard [a]ny error or omission [by a trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." State v. Castagna, 187 N.J. 293, 312 (2006) (quoting R. 2:10-2). Here, even though cross-examination was not fully realized, a court would nevertheless conclude that the error was harmless beyond a reasonable doubt. Van Arsdall, supra, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686.

J.F.'s testimony was not crucial to the State's proving its case against the juvenile. The trial court acknowledged that J.F. "took some liberties" in his testimony and recognized that J.F.'s testimony consisted of "some embellishment." J.F.'s testimony of his observations of B.H.'s commission of the sexual assault was, for the most part, consistent with and corroborative of the testimony of H.S. and the other two eyewitnesses, K.T. and P.C., whose testimony was found credible by the trial judge. Moreover, the trial court noted that defense counsel fully and effectively cross-examined J.F., pointing out the inconsistencies between his testimony at trial and his statement to the police.

B.H. emphasizes that J.F. testified to facts that were not brought out by any other witness, including J.F.'s statement that B.H. admitted his guilt after leaving the backyard, the conversation two days after the event in which B.H. purportedly asked J.F. to lie to the police about the evening of December 26, and the sarcasm contained in the letter sent to J.F. by B.H. two months prior to trial. Of course, all of these incidents emphasized the close relationship B.H. and J.F. enjoyed, having been best friends since the fourth grade. Attacking J.F.'s credibility by exploring his probationary status was not likely to have any impact on the determination that J.F. was someone B.H. was likely to confide in based on their long-standing relationship. In any event, J.F.'s testimony was not necessary to establish the second-degree sexual assault, given the abundance of evidence against B.H.

Even if J.F.'s testimony was disregarded, there was overwhelming evidence to support the trial court's finding, beyond a reasonable doubt, that the juvenile sexually assaulted the victim. The victim's testimony surrounding the sexual assault was found credible, and was corroborated in material respects by the other two eyewitnesses, as well as the fresh complaint testimony provided by S.E. and S.B. The testimony reflected that the juvenile pinned the victim against the tree by placing his hands on her shoulders and forcing his body against her. He had unbuckled her belt and pulled down her pants. Despite being repeatedly told, "No," and "Stop," B.H. inserted his penis into her vagina and continued to thrust his body against her in a pumping motion. B.H. tried to misidentify himself by providing a false name, which the trial judge found to be "an indication of knowledge of wrongdoing or guilt, trying to conceal one's identity." Even if J.F.'s testimony had not been presented at trial, the trial record contained overwhelming credible evidence supporting the elements of a second-degree sexual assault having been committed. Any error in not permitting the juvenile to cross-examine J.F. regarding his juvenile probationary status was harmless beyond a reasonable doubt.



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