On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
In this appeal of defendant's conviction for the sexual abuse of his stepson, B.D., we reverse and remand for a new trial due to the judge's admission of photographs of defendant's stepdaughter, C.D. The State was permitted to use these so-called "distasteful" photographs to challenge the credibility of defendant's testimony that he had a good parental relationship with his stepdaughter and never sexually abused her. Because the judge erred in admitting the photographs due to their slim nexus to the charges in question and their potential for prejudice -- an error exacerbated by the lack of cautionary instructions for the jury -- we remand for a new trial.
In 2005, defendant was indicted and charged in a multi-count indictment with the sexual abuse of A.D. and B.D. As to the former, defendant was charged with: second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree official misconduct, N.J.S.A. 2C:30-2 (count four). And, as to B.D., defendant's stepson, he was charged with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count five); second-degree sexual assault, N.J.S.A. 2C:14-2c (count six); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven); first-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count eight); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count nine).
Counts seven, eight, and nine were dismissed prior to trial. In July 2006, the remaining six counts, involving both alleged victims, were the subject of a single trial. The jury returned a guilty verdict on all the charges pertaining to A.D. (counts one through four), but was unable to reach a verdict on the remainder. In December 2006, defendant was retried and found guilty on the charges pertaining to B.D. (counts five and six). Defendant was sentenced to an aggregate five-year prison term on counts one through four, and a consecutive aggregate twelve-year prison term, with a six-year period of parole ineligibility, on counts five and six.
We reversed, holding that the charges should have been severed because the alleged offenses involving B.D. and those involving A.D. were different in many respects and also were alleged to have occurred eight years apart. For these and other reasons, we remanded for new, separate trials. State v. D.K., Nos. A-3688-06 and A-5182-06 (App. Div. Aug. 15, 2008), certif. denied, 196 N.J. 601 (2008).
Defendant was retried on the charges pertaining to B.D. in June 2009. The jury found him guilty of first-degree aggravated sexual assault (count five) and second-degree sexual assault (count six); on the former, defendant was sentenced to a twelve-year prison term with a six-year period of parole ineligibility, and on the latter, the judge imposed a concurrent seven-year prison term with a three-year period of parole ineligibility. Defendant later pled guilty to counts one and four, offenses relating to A.D., and was sentenced to a concurrent, aggregate six-year prison term.
Defendant appealed, presenting the following arguments with respect to his trial on the charges pertaining to B.D. and the sentence imposed as a result:
I. THE ADMISSION OF INAPPROPRIATE PHOTOGRAPHS DEFENDANT TOOK OF HIS DAUGHTER, COUPLED WITH THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION ON THIS EVIDENCE, VIOLATED N.J.R.E. 404(b) AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
II. THE COURT'S JURY INSTRUCTION REGARDING B.D.'S ALLEGATION THAT DEFENDANT HAD SEXUALLY ABUSED HIS DAUGHTER UNDERMINED THE DEFENSE BY FAILING TO EXPLAIN HOW B.D.'S ALLEGATION WAS RELEVANT TO THE DEFENSE THEORY OF THE CASE (Not Raised Below).
III. THE PROSECUTOR'S IMPROPER INTRODUCTION OF CHARACTER EVIDENCE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.
IV. THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM IMPEACHING THE VICTIM WITH HIS COURT MARTIAL WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
V. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We find insufficient merit in Points III and IV*fn1 to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because we conclude that the admission of the photographs referred to in Point I requires reversal, we need not address the issues raised in Points II and V.
In Point I, defendant argues he was deprived of a fair trial on the charges that he sexually abused his stepson, B.D., because of the State's use of photographs he took of his stepdaughter, C.D. In explaining why we agree with defendant's argument that he is entitled to a new trial, we are required to explain at some length the relevant testimony and consider the judge's earlier rulings, by which he barred the use of the photographs, and the circumstances that led to his ultimate determination to permit their use.
The evidence reveals that defendant married B.D.'s mother and lived with B.D. from the time he was eleven until he turned eighteen years old. Also living in the home were B.D.'s ...