February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CURT ALEXANDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-02-0205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Alvarez and Skillman.
Tried by a jury, defendant Curt Alexander was convicted of all counts of Indictment No. 08-02-0205: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); third-degree child endangering, N.J.S.A. 2C:24-4(a) (count two); and second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count three). After merging the second-degree sexual assault conviction with the first-degree aggravated sexual assault, on June 11, 2009, the trial judge sentenced defendant to a twelve-year term subject to the No Early Release Act (NERA) eighty-five percent parole disqualifier. See N.J.S.A. 2C:43-7.2(a). Appropriate fines, penalties, and other conditions were imposed. Defendant appeals, and we affirm.
According to the State's proofs, defendant, a childhood friend of the victim's father, lived with the victim's family from 1996 until late 1999 or early 2000. In 1999, the victim, J.T., was approximately eight years old.
J.T. testified at defendant's trial that at times she and her siblings would be left in his care. On those occasions, defendant performed oral sex upon her and compelled her to perform oral sex upon him. She also believes he engaged in vaginal intercourse with her, as after these episodes, urination was painful. The victim said nothing to her parents about the assaults, but at age fifteen or sixteen, she separately disclosed the events to a cousin, S.T., and her best friend, J.R. At trial, J.R. corroborated that the victim had told her about these events; S.T. did not testify.
During the early morning hours of November 4, 2007,*fn1
the victim's mother discovered an undressed teenage boy with
J.T. In the ensuing discussion when she was confronted about her
sexual activity by her parents, J.T. revealed defendant's sexual
J.T.'s father testified that as a result of his daughter's disclosures, he drove to defendant's home and spoke to him outside his house for fifteen or twenty minutes. J.T.'s father said defendant admitted having "relations" with the victim. Defendant also admitted wanting to tell the victim's father about his crimes but that he "didn't know how[.]" He apologized. The victim's father then went home.
By this time it was approximately 4:00 or 4:30 in the morning. Some time later, the victim's father returned to defendant's house and asked him to get in the car so they could discuss the situation further. During this conversation, defendant admitted that he forced the child to perform oral sex upon him. At one point, defendant told J.T.'s father to strike him as hard as he could, which he did. J.T.'s father recalled punching defendant "maybe once, twice or three times[,]" although he could not remember the precise number of punches.
He admitted threatening to kill defendant, asking rhetorically, "who wouldn't?"
Defendant explained his conduct to J.T.'s father by claiming he had demons inside and could not stop himself. Finally, J.T.'s father drove defendant back to his house, returned to his own home, and called his extended family. The authorities were subsequently contacted.
Defendant testified on his own behalf. He acknowledged living in J.T.'s home, but denied being left alone with the children except on two occasions. Defendant's description of his conversation with J.T.'s father during the very early morning hours of November 4, 2007 also differed. He insisted that he initially denied the accusations, and that as a result J.T.'s father left, agreeing with him that J.T. was probably "protecting a boy . . . ." Defendant said that J.T.'s father subsequently returned, armed with a gun, and ordered him into his car. While the men drove around, defendant said J.T.'s father repeatedly threatened him and his family, and actually assaulted him. Defendant claimed he admitted to the wrongful conduct and attributed it to the presence of demons inside him only after the threats were made. When J.T.'s father brought him back home, his wife urged him to report the matter to police. Defendant said he refused out of a sense of loyalty to J.T.'s father because he did not want to see him go to jail.
During the trial, in a Rule 104 hearing conducted outside the presence of the jury, the court ruled that J.T. could testify about disclosing the sexual assaults to her cousin and her best friend. The court gave the jury a fresh complaint instruction, tracking the model jury charge, Model Jury Charge (Criminal), "Fresh Complaint" (2007), immediately after J.T. testified about the disclosures. He repeated the instruction after the State rested and in the closing charge.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT'S CHARGE TO THE JURY ON FRESH COMPLAINT WAS ERRONEOUS AND RESULTED IN MR. ALEXANDER BEING DEPRIVED OF HIS RIGHT TO A FAIR TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL CONSTITUTIONS. (NOT RAISED BELOW)
THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S.C CONST. AMEND. XIV; N.J. CONST. 1947), ART. I, PAR. 10
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION
Because defendant did not object to the charge when given, we review it under the plain error rule, being mindful that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). As the Court has previously stated, the trial judges have an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004); see also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").
Therefore, in applying the plain error standard of review found in Rule 2:10-2, we must be confident that the alleged defect had no prejudicial impact. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take[,]" the conviction must be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
Defendant contends that the fresh complaint instruction given to the jury was improper and prejudicial for two reasons. The first reason is because it referred to the disclosure J.T. allegedly made to her cousin, and named her, although the cousin did not testify. The second reason is that the judge did not inform the jury that, in weighing the victim's credibility, they should consider the delay between the alleged incident and J.T.'s disclosures to her cousin and her friend. In support of the argument, defendant draws our attention to State v. Balles, 47 N.J. 331, 338 (1966), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967).
As to defendant's first argument, that the judge should have omitted naming the victim's cousin because doing so deprived defendant of his constitutional right to confront witnesses, thereby prejudicing his right to a fair trial, defendant offers no analysis which leads to that conclusion. It is not self-evident that merely naming the cousin violated defendant's right to confront witnesses and no rationale has been offered which would make it so. If any such violation occurred - and defendant does not contend that it occurred nor do we suggest that it did - it happened when J.T. testified about telling her cousin about these assaults, not when the judge mentioned the cousin's name.
As the judge repeatedly told the jury in the fresh complaint instruction administered on three separate occasions, the statements themselves were not evidence nor did they make J.T. a more credible witness. He explained: "a fresh complaint . . . merely serves to negate any inference that, because of her assumed silence, the offense did not occur." Defendant has not connected the judge's mention of the cousin's name with any prejudice, none is obvious to us, and we therefore conclude it had no impact on the outcome.
Defendant's second argument is that the court erred by failing to instruct the jury that if it found "that the complaint was not made 'within a reasonable time after the commission of the alleged offense' it could consider that fact in determining the value and weight to be given that testimony." The record is to the contrary.
After J.T. testified that she had disclosed the sexual assaults to her cousin and her best friend, the judge told the jury, as suggested in the model jury charge, that they "may consider the timeliness of the complaint . . . . [I]f there was a delay in making the complaint, you may consider whether any circumstances existed, which would explain that delay." He reiterated that language when he repeated the charge at the close of the State's case, and in his final charge. On each occasion the judge painstakingly explained that the purpose for admission of the fresh complaint evidence was solely to dispel the negative inference that the charge of sexual assault must be false because of the victim's failure to confide in anyone about it. Each time he repeated that the length of time between the events and disclosure could be taken into account by the jury in their deliberations.
Therefore, contrary to defendant's assertion, the trial judge did inform the jury that the victim's failure to disclose the alleged sexual assaults for years could be considered in determining "the value and weight to be given to the testimony." Balles, supra, 47 N.J. at 341. Nothing further was required. Thus, the jury instructions were neither erroneous nor in any fashion prejudicial to defendant.
Additionally, defendant contends that the verdict was against the weight of the evidence. In support of the contention, he draws our attention to the fact that the victim remained silent for seven and one-half years. Defendant reiterates that his purported confession to J.T.'s father was merely the product of the physical and mental coercion by J.T.'s father when, while armed with a gun, he threatened his life and that of his family, and struck him. No motion for a new trial was made, meaning that the "weight of the evidence" argument is procedurally barred. R. 2:10-1. See Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974).
Even if we could consider the argument, it is apparent that the jury believed the victim's testimony, not defendant's. She testified as a young adult, and included details of her ordeal such as that defendant's sexual assault made it painful for her to urinate. The jury's assessment of credibility was the deciding factor in the case, and we see nothing in the record which makes their conclusion appear mistaken. See State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002) (holding that "[t]he jury is free to accept or reject . . . any aspect of testimonial evidence based on credibility.") This argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Lastly, defendant argues his sentence was excessive. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.
The judge found that there was a risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), as well as the need to deter defendant and others from the commission of crimes, N.J.S.A. 2C:44-1(a)(9). In mitigation, the court found only defendant's lack of a prior criminal conviction history. See N.J.S.A. 2C:44-1(b)(7).
The record contained ample support for the finding that defendant, who expressed no remorse and continued to assert his innocence, was at risk to reoffend. See State v. O'Donnell, 117 N.J. 210, 216 (1989); see also State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991) (finding that the defendant's protestations of innocence and lack of remorse "indicate" a need to deter). Defendant committed his crimes against the victim after having been invited to this country and to her home by the victim's father. As the trial judge saw it, this significant violation of trust indicated a likelihood of reoffense. Moreover, despite the court having found two aggravating factors, and only one factor in mitigation, the court nonetheless sentenced defendant to the very low end of the range, twelve years. See N.J.S.A. 2C:43-6(a)(1). The aggravating and mitigating factors are supported by the record, the sentence complies with the Code, and does not shock our conscience.