September 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN WRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-08-1412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Parrillo, Yannotti and Espinosa.
Defendant appeals from his convictions for sexual offenses committed against his girlfriend's thirteen year old daughter. For the reasons that follow, we affirm.
The Bergen County Grand Jury returned an indictment charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count one); second-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree child abuse, N.J.S.A. 9:6-3 (count four).
The victim, M.R., was born March 1, 1993. In March 2006, her mother, C.B., was in a dating relationship with defendant. At times, both C.B. and her two daughters slept at defendant's house. Defendant sometimes cared for her daughters until she came home from work. M.R. testified that when defendant stayed with the girls until C.B. came home from work, he would "always be in her room" and she wanted her "space" and "privacy." This began to make her feel uncomfortable.
On March 19, 2006, M.R. had an argument with her mother over whether or not she had to go to a party with defendant's family. The next day, defendant spoke to M.R. about the argument. M.R. stated that he "started like, trying to comfort [her][,]" and started touching her. She testified that defendant touched her on her arms, legs, and thighs, and kissed her on the lips. Defendant then brought M.R., his daughter, and M.R.'s sister to his house.
M.R. planned on sleeping on a sofa bed in defendant's daughter's room. However, defendant said to her, "Oh, you sure you don't want to sleep in my bed?" M.R. said she would sleep on the sofa bed but defendant said, "Oh, no, go sleep in my bed." M.R. testified that she thought defendant would sleep elsewhere if she slept in his bed. Instead, after M.R. had been in bed watching television for a while, defendant came in the room and got in bed with her.
M.R. was lying on her side on the edge of the bed. Defendant began touching her on her "butt" over her clothes, proceeded to lift up her shirt and then her bra to expose her breasts and did "the same thing with [her] panties." Defendant got out of bed, went to his closet, began pulling things out and, M.R. suspected, got a condom. Defendant came back to bed, took off his clothes and rolled M.R. on her back. He pulled down her sweatpants and underwear to the middle of her thighs. M.R. testified that defendant penetrated her vagina with his penis, that it hurt and "felt disgusting." She stated he "put it in once, then he took it out, . . . [t]hen he got out of bed and he left again." M.R. pulled up her pants and rolled over. After being out of the room for a while, defendant returned, got back into the bed, and went to sleep.
The next morning, as M.R. got dressed for school, she noticed a little blood on her panties. Defendant acted as if nothing had happened so she did the same. Later in the day, she told one of her friends in gym class what happened and they both started crying. Her friend told her to tell her mom, that she had to tell somebody else. M.R. did not tell her mother because she "knew it was going to hurt her."
There was some inconsistency as to which adult M.R. confided in first. M.R. testified that she first told her maternal aunt, A.D. (A.D.), and told her maternal uncle, W.D., a few days later. However, C.B. testified that M.R. first "insisted" she wanted to speak to her uncle.
After a N.J.R.E. 104(b) hearing to determine the admissibility of his testimony, W.D. testified that M.R. frequently confided in him. That day, they spoke for approximately one to one and one-half hours. When he started talking to her, he could tell something was wrong. M.R. told him that defendant had asked her to sleep in the bedroom with him, that her pants came off and that he put his penis inside her. W.D. stated she was upset and crying the whole time. He consoled her and, at her request, did not immediately notify the police or anyone else. Instead, he called M.R.'s big brother, asked him to look out for defendant, and later called his sister, A.D., and told her she needed to talk to M.R., that something may have happened to her.
After her aunt asked her what was going on with her and defendant, M.R. told her what happened. They went to her grandmother's house and met with M.R.'s mother. She then told her mother what happened. Her mother was "shocked" and "heart broken." Her aunt took M.R. to the police station, where she spoke to the police. M.R. stayed with her grandmother for several months thereafter.
C.B. testified that at first she could not believe what her daughter told her. She went to defendant's house and confronted him. Defendant denied that anything happened. He tried to persuade C.B. to convince her sister not to bring M.R. to the police station. She told him her sister had already taken M.R. to the police station. C.B. joined them and defendant went to the police station as well.
After being advised of his Miranda*fn1 rights and executing a written waiver, defendant admitted to Detective Matthew McGowan of the Bergen County Prosecutor's Office that he slept in the bed with M.R. on the evening of March 20, 2006, that he got an erection, and he left the bed. Defendant said M.R. might have felt his erection when he pressed up against her. He stated he was trying to console her after an earlier argument. He admitted to rubbing her arm but denied having sexual intercourse with M.R. or touching her breasts or vagina.
Defendant was placed under arrest at the conclusion of the interview. C.B. and defendant's brother bailed him out of prison after approximately one month. At trial, defendant denied he told the police he slept in the same bed as M.R., got an erection, or rubbed up against her.
M.R. was examined on May 23, 2006, by Dr. Nina Agrawal at the Audrey Hepburn Children's House at Hackensack Medical Center. The doctor testified that M.R.'s genital area appeared normal and unremarkable except for "a knotch [sic], the 9 o'clock position of the hymen." She described this as a "nonspecific finding" that was consistent with but not definitive proof of penile vaginal penetration.
The jury found defendant not guilty on count one of aggravated sexual assault but convicted him of the lesser included offense of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a).*fn2 The jury also convicted defendant of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count two, as amended); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three), and child abuse, N.J.S.A. 9:6-3 (count four). The trial court sentenced defendant as follows:
The defendant is sentenced on count 1 to 250 days Bergen County Jail as a condition of 5 years probation with sex counseling [sic]. Probation is suspended. The defendant is sentenced on counts 2, 3 and 4 to the same terms and conditions, and all counts are to run concurrent to each other. Megan's Law and parole supervision for life both apply.
Appropriate fines and penalties were also imposed.
Defendant raises the following issues in this appeal:
THE TRIAL COURT ERRED BY ADMITTING M.R.'S PRIOR STATEMENT TO [W.D.]UNDER THE FRESH COMPLAINT DOCTRINE AND COMPOUNDED THAT ERROR BY FAILING TO GIVE ANY LIMITING INSTRUCTION TO THE JURY WHATSOEVER ON THE ISSUE (PARTIALLY RAISED BELOW)
A. THE ADMISSION OF M.R.'S
PRIOR STATEMENT TO [W.D.] (RAISED BELOW)
B. THE TRIAL COURT'S
FAILURE TO GIVE A LIMITING INSTRUCTION ON THE FRESH COMPLAINT TESTIMONY (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO REPEATEDLY
[E]LICIT THE FACT THAT DEFENDANT WAS INCARCERATED POINT III
THE JUDGE ERRED IN CHARGING THE JURY WITH COUNTS ONE AND TWO POINT IV
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S NOT CHARGING THE JURY ON THE FRESH COMPLAINT RULE OR GIVING A LIMITING INSTRUCTION ON DEFENDANT'S INCARCERATION After carefully considering the record and briefs of counsel, we are satisfied that none of these arguments has merit.
We first consider defendant's arguments regarding the fresh complaint testimony provided by W.D. Defendant argues that this testimony was not properly admissible as fresh complaint evidence because of the circumstances in which M.R. made the statement and also because he did not argue at trial that she failed to complain about the sexual contact.
The fresh complaint doctrine permits proof that a victim of sexual assault complained of the assault within a reasonable time to someone the victim would normally turn to for sympathy, protection and advice. The evidence is permitted to forestall the assumption that no assault occurred because no complaint was made.
[State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572 (2003) (internal citations omitted)].
The evidence established that M.R. was close to and confided in her uncle. Her mother testified that M.R. "insisted" on speaking to him. The conversation occurred within a reasonable time of the assault, particularly in light of the fact that reasonableness is viewed liberally when a minor is involved. Although W.D. questioned M.R. about what was troubling her, he had no advance knowledge of what that was and did not coach or coerce her into making the allegations against defendant. See State v. Bethune, 121 N.J. 137, 143-44 (1990); Pillar, supra, 359 N.J. Super. at 283. The testimony regarding M.R.'s statements to W.D. did not exceed the level of detail necessary to recognize the comments as a complaint about a sexual assault. See State v. W.B., 205 N.J. 588, 617 (2011); State v. Hill, 121 N.J. 150, 163 (1990). Moreover, because the purpose of such evidence is "to forestall" any assumption that the alleged victim did not complain, the impeachment of the witness is not material. 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).
Whether testimony is properly admitted as fresh complaint evidence is committed to the sound discretion of the trial judge. W.B., supra, 205 N.J. at 616; Bethune, supra, 121 N.J. at 147-48. We grant substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). We find no abuse of discretion in the admission of the fresh complaint evidence here.
Defendant also argues that the trial court erred in failing to charge the jury on the limitations on its use of such evidence. There was no discussion regarding a limiting instruction at the time of the R. 104(b) hearing or when W.D. testified. Defense counsel made no jury charge requests at the end of the trial. However, a charge on "fresh complaint" was among those requested by the State. The court asked defense counsel if he was going to make a fresh complaint argument in summation. Counsel replied, "No, Judge." The court then stated, "He's not arguing about it. I'm not going to raise it. . . . I'm not going to charge that." Neither the State nor defense counsel objected.
It is clear that when evidence is admitted as fresh complaint evidence, it is for a narrow purpose and requires a limiting instruction as to the manner in which jurors may use the evidence. See State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006); State v. Buscham, 360 N.J. Super. 346, 359 (App.
Div. 2003). It was, therefore, error for the court to decline to give a limiting instruction. However, because there was no objection, we review this issue pursuant to the plain error standard to determine whether the error was "clearly capable of producing an unjust result." R. 2:10-2.
The jury convicted defendant on two counts of aggravated sexual contact, which, in this case, required proof that defendant committed an act of sexual contact*fn3 with a victim at least 13 years old but less than 16 years old. See N.J.S.A. 2C:14-1(d), 2C:14-2(a)(2), and 2C:14-3(a). Defendant was also convicted of endangering the welfare of a child, which is committed when a person "engages in sexual conduct which would impair or debauch the morals of" a child under the age of 16. N.J.S.A. 2C:24-4. Finally, defendant was convicted of child abuse. N.J.S.A. 9:6-3 states in pertinent part, "Any . . . person having the care, custody or control of any child, who shall abuse, . . . such child, or any person who shall abuse . . . any child shall be deemed to be guilty of a crime of the fourth degree."
In his testimony at trial, defendant stated M.R. was thirteen years old and that, from time to time, he cared for M.R. and her sister while C.B. was working. He was doing so on the evening of the incident. Detective Sergeant McGowan testified that defendant admitted lying down in bed with M.R. and that his erect penis rubbed against her. Although he denied making this statement, such admissions, if accepted as true, constituted compelling evidence of each of the offenses for which he was convicted. In the face of such incriminating evidence that is totally independent of W.D.'s testimony, the failure to provide a limiting instruction on the fresh complaint testimony did not constitute plain error.
After carefully reviewing the record and briefs of counsel, we are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.
Defendant argues that the trial court erred in permitting the prosecutor to elicit testimony that referred to the fact that he stayed in jail until C.B. and his brother bailed him out. Defense counsel objected to much of this testimony but did not request a limiting instruction. In reviewing the admission of this evidence to determine whether there was an abuse of discretion, we consider the context of the trial. In his opening statement, defense counsel told the jury, "You're also going to hear that [M.R.'s] mother never believed her." Defense counsel developed this theme in cross-examination of C.B., questioning her about her repeated visits to defendant in jail after M.R.'s allegation and the fact that C.B. contributed to his bail. Defendant also testified about C.B.'s desire to continue their relationship after he was released. Thus, defendant used similar references to his incarceration as part of a strategy to discredit M.R. by showing her mother did not accept her allegation as credible. Therefore, the court's failure to exclude such evidence did not constitute an abuse of discretion.
Defendant also argues there was insufficient evidence that he acted in loco parentis with M.R. to permit the trial court to submit the charges of aggravated sexual assault and aggravated sexual contact (counts one and two) to the jury. As a preliminary matter, his in loco parentis status is relevant to the aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c), of which he was acquitted, but is irrelevant to aggravated sexual contact, N.J.S.A. 2C:14-3(a), the charge on which he was convicted. Moreover, it is undisputed that defendant occasionally watched M.R. until her mother came home from work and was doing so on the night she was assaulted. This argument therefore lacks merit.
Finally, defendant argues he was denied the effective assistance of counsel based upon his attorney's failure to demand a charge on fresh complaint or a limiting instruction regarding his incarceration. Because these arguments require the review of facts not within the record, they are more properly addressed in a petition for post-conviction relief, and will not be addressed here.