July 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Lihotz and Baxter.
Following a retrial, defendant V.C. appeals from his December 11, 2009 conviction on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four). After appropriate merger, the judge sentenced defendant on count one to a fifteen-year term of imprisonment subject to the eighty-five percent mandatory parole ineligibility term required by N.J.S.A. 2C:43-7.2. On count three, the judge imposed a consecutive seven-year term of imprisonment.
On appeal, defendant raises the following claims:
I. THE PROSECUTOR IMPROPERLY BOLSTERED THE CREDIBILITY OF F.P. AND L.R., AND IMPROPERLY INJECTED HIMSELF INTO THE JURY'S ASSESSMENT OF THE DEFENDANT'S CREDIBILITY BY ELICITING TESTIMONY THAT BOTH HE AND "A JUDGE" APPROVED OF THE CHARGES FILED AGAINST DEFENDANT (Not Raised Below).
II. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULINGS CONCERNING DEFENDANT'S PRIOR CRIMINAL CONVICTIONS RESULTED IN HARMFUL ERROR.
A. The Defendant's Prior Convictions Were Remote and Their Probative Value Was Vastly Outweighed By Prejudice.
B. The Failure to Sanitize the Nature of the Prior Convictions Aggravated the Jury's Community "Sense of Justice" Against the Defendant.
III. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE L.R.'S "VICTIM-IMPACT" TYPE OF TESTIMONY WAS IRRELEVANT AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
IV. THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED.
V. THE AGGREGATE BASE CUSTODIAL TERM OF 22 YEARS WAS MANIFESTLY EXCESSIVE.
When F.P. was approximately eleven years old, her mother, L.R.,*fn1 married defendant. According to F.P.'s trial testimony, defendant started sneaking into her bedroom, and into her bed, when she was approximately thirteen years old. We described the trial testimony from the first trial in considerable detail in our prior opinion, State v. V.C., No. A-3810-06 (App. Div. March 25, 2009).*fn2 Because the testimony produced during the 2009 retrial bore substantial similarity to the testimony produced in the initial 2006 trial, we restate the facts only briefly and incorporate by reference the factual recitation from our earlier opinion. Id. at 2-10. We will set forth a more detailed version of the facts only where necessary to an understanding of the legal issues advanced in the present appeal.
The State's proofs established that L.R. had, on several occasions, found defendant sleeping in F.P.'s bed. When L.R. confronted him, defendant insisted that the couple's younger children were sleeping in the bed that defendant shared with L.R. and, as a result, there was no room for him. He asserted that he could not sleep in the children's bedroom because it was too cold.
In October 2003, defendant went to Texas to take a course in tractor-trailer driving. With defendant gone from the home, L.R. asked F.P. if defendant had touched F.P. "anywhere that he shouldn't have." Although F.P. initially denied that defendant had molested her, a little while later she went into her mother's room and told her mother that defendant had touched her many times "up [her] shirt and down [her] pants." Without objection, L.R. testified that after learning of the abuse, she "threw up for the rest of the night."
Several days later, defendant telephoned L.R. and told her he would be coming home earlier than anticipated. L.R. testified that she was afraid of defendant, and filed for, and was granted, a domestic violence temporary restraining order (TRO).
During the direct examination of Detective Sergeant James J. Smith, Jr., the prosecutor elicited testimony concerning defendant's arrest. Without objection from defendant, Detective Smith testified that he prepared a "brief synopsis" of the charges "for a judge to review in order for the arrest warrants to issue." The following testimony was presented:
[Prosecutor]: Now, based on your interview of [defendant], as well as the investigation that you had conducted, did you sign complaints . . . against [defendant]? [Detective Smith]: Yes, I did.
Q: In the process of seeking to sign those criminal complaints, did you author what is called an affidavit in support of the application for an arrest warrant?
A: Yes, I did.
Q: And what is that? Can you tell the jury what that is?
A: That briefly outlines the charges that you are going to be filing. . . . It tells a brief synopsis about what the case is about.
Q: And that is for a judge to review in order for the arrest warrants to issue?
A: That is correct. [(Emphasis added).]
Later, during the prosecutor's direct examination of Detective Colleen Lynch, the prosecutor elicited the following testimony, again without objection from defendant:
[Prosecutor]: Now, after this interview [of defendant] is conducted and he refused to go on tape, what, if anything, was done?
[Detective Lynch]: I contacted yourself who was the Assistant Prosecutor in our unit at the time, advised of the facts of our case, and charges were approved. [(Emphasis added).]
After the State rested, defendant moved for a judgment of acquittal, which was denied.
Defendant testified, denying that he ever touched F.P. inappropriately. Although he admitted that he occasionally slept in F.P.'s bed because his own bed was too crowded, he denied molesting F.P. Defendant also maintained that he attended the tractor-trailer driving course in anticipation of securing a job that would necessitate moving the family to Kansas. Defendant testified that both L.R. and F.P. were angry with him because they did not want to relocate.
On cross-examination, in keeping with the judge's earlier ruling, the prosecutor was permitted to cross-examine defendant about his prior criminal convictions, which included an April 7, 1995 conviction for second-degree possession of a controlled dangerous substance with intent to distribute and an April 7, 1995 conviction for fourth-degree promoting prostitution.
In Point I, defendant argues that the prosecutor improperly bolstered the credibility of both F.P. and L.R. by eliciting testimony that both the prosecutor and "a judge" approved the charges filed against defendant. Because defendant interposed no objection at the time this testimony was presented, we will not reverse on this ground unless the error, if any, was clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
We agree it is improper for a prosecutor to present testimony establishing that a judge approved the issuance of an arrest warrant, when the testimony may mislead the jury by suggesting a judicial officer with knowledge of the law and the facts believed evidence of criminality was presented. State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992). See also State v. Alvarez, 318 N.J. Super. 137, 148 (App. Div. 1999). But see State v. Marshall, 148 N.J. 89, 240 (1997) ("We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
The State urges us to reject defendant's claim that the reference to a judge issuing the warrant denied defendant a fair trial. The State maintains that such questions "were harmless" because the testimony "simply indicated that proper procedures were followed with regard to defendant's arrest[.]"
When the propriety of police actions is not challenged, we disapprove of the State's interjection of unnecessary references to warrants generally and references to judicial approval of arrest warrants specifically, because this type of testimony may be unnecessarily prejudicial. See Alvarez, supra, 318 N.J. Super. at 148 (holding repeated interjection of references to warrants caused prejudice despite the accuracy of police statements). We nonetheless reject defendant's argument that the testimony in question denied him a fair trial. As we have noted, Detective Smith testified that he prepared a "brief synopsis" for the judge "to review in order for the arrest warrants to issue." But Detective Smith's testimony went no further. Notably, the prosecutor did not elicit testimony from the detective that the judge approved the issuance of the warrants. Although such a fact may have been implied by the question, it is significant that the prosecutor did not actually elicit testimony on that subject. Thus, the testimony about the judge's "review" of the synopsis fell far short of the testimony we disapproved in Milton.
Moreover, unlike Milton, where the prosecutor referred to the issuance of the search warrant in his opening statement, id. at 519, here, the reference to the judge's "review" of the synopsis of the charges was never mentioned again. Additionally, because defendant did not object at the time the testimony was elicited, both the State and the judge were denied the opportunity to take any corrective action. See State v. Frost, 158 N.J. 76, 83 (1999) (observing that "[i]n determining whether a prosecutor's misconduct was sufficiently egregious," an appellate court should, among other considerations, evaluate "whether defense counsel made timely and proper objections to the improper remarks"). For all of these reasons, we reject defendant's contention that he was denied a fair trial when Detective Smith testified about the judge's potential "review" of the synopsis in connection with the issuance of arrest warrants.
We next address defendant's challenge to Detective Lynch's testimony that she reviewed the charges with the assistant prosecutor, who "approved" the filing of charges against defendant. Testimony suggesting that a prosecutor, upon being advised of the "facts," "approved" the charges against a defendant is improper because it suggests that the prosecutor -- an authoritative embodiment of law enforcement --believes the charges are meritorious. Id. at 85 (observing that a prosecutor should not "vouch" for the credibility of a witness). Although the facts here differ slightly from those in Frost, we do not disagree with defendant's contention that the State should not have presented evidence that the prosecutor approved the filing of the charges.
However, we conclude that the testimony in question did not deny defendant a fair trial and was not clearly capable of producing an unjust result. See R. 2:10-2. The testimony concerning the prosecutor's approval of the charges was fleeting and was not repeated. Moreover, defendant interposed no objection, which "suggests that defense counsel did not believe the [testimony] [was] prejudicial at the time [it was offered.]" Frost, supra, 158 N.J. at 84. We reject the claim defendant advances in Point I.
In Point II, defendant asserts that the admission of testimony about his prior convictions denied him a fair trial, as the convictions "were remote and their probative value was vastly outweighed by [undue] prejudice." In the alternative, he argues that the judge's failure to "sanitize" the nature of the prior convictions offended the jury's "sense of justice," thereby inflaming the jurors' passions and creating an improper basis for the guilty verdicts.
For purposes of determining whether a prior conviction may be used to impeach the credibility of a testifying criminal defendant, the key to exclusion is remoteness. State v. Sands, 76 N.J. 127, 144-45 (1978). Whether a prior conviction may be used to impeach the credibility of a defendant who takes the stand "rests within the sound discretion of the trial judge," whose discretion "is a broad one." Id. at 144. However, if the prior conviction is for a crime similar to the charges for which a defendant is currently on trial, the judge is obligated to sanitize the conviction, and must limit the State to eliciting the fact of the conviction, the degree of the crime and the date of the conviction. State v. Murphy, 412 N.J. Super. 553, 563 (App. Div.), certif. denied, 203 N.J. 440 (2010).
We perceive no abuse of discretion in the judge's decision permitting the State to impeach defendant with his 1995 convictions for drug distribution and promoting prostitution. The pre-sentence report prepared for purposes of sentencing establishes that defendant was not paroled on his 1995 convictions until March 12, 1997. Thus, twelve years elapsed between defendant's release on parole and the time of trial. We do not consider this twelve-year period to be so long as to trigger the remoteness considerations the Court described in Sands, supra, 76 N.J. at 144-45. As for defendant's assertion that the judge should have sanitized his convictions, we conclude this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nothing in Murphy required the judge to sanitize defendant's 1995 convictions for promoting prostitution and drug distribution, as neither was remotely similar to the child sexual abuse charges for which defendant was on trial. We reject the claims defendant advances in Point II.
In Point III, defendant asserts that L.R.'s "'victim-impact' type of testimony was irrelevant and prejudiced [his] right to a fair trial." In particular, defendant maintains that the testimony of L.R. that she "threw up for the rest of the night" upon being told by her daughter that defendant had molested her, and that L.R. was so afraid of defendant that she sought a TRO, were irrelevant and had no probative value. He further maintains that this testimony was so prejudicial as to require its exclusion pursuant to N.J.R.E. 403. A trial court is afforded considerable latitude concerning the admission of evidence, and we will not reverse such a decision absent an abuse of discretion. State v. Wakefield, 190 N.J. 397, 426 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
We perceive no abuse of discretion here. Throughout the trial, defendant sought to establish that both F.P. and L.R. fabricated the molestation charges because they were angry and upset about the prospect of moving to Kansas. Defendant utilized this strategy during the cross-examination of both witnesses, and he repeated that theme during his direct examination when he testified that upon being told that the family would shortly be relocating to Kansas, F.P. and L.R. "were livid." According to defendant, L.R. demanded that he "[f]ind a local job" instead, and insisted that she would not move to Kansas.
In light of defendant's argument that the charges were fabricated by F.P. and L.R. to avoid a move to Kansas, the State was entitled to refute that claim by establishing that L.R. became physically ill and vomited, upon learning from F.P. what defendant had done. The judge did not abuse his discretion when he permitted the State to elicit such testimony.
The testimony concerning L.R. obtaining a TRO is a closer call. L.R.'s testimony that she was "scared of defendant" has no direct bearing on whether L.R. and F.P. fabricated the criminal charges against defendant. However, the fact that L.R. sought a TRO to keep defendant away from F.P., and to protect F.P. from the risk of any further molestation, was relevant as it established that the sexual assault charges filed against defendant were legitimate and that L.R. took steps to protect her daughter. We reject defendant's argument that this testimony -- to which there was no objection at trial -- denied him a fair trial. We reject the claims defendant advances in Point III.
In Point IV, defendant argues that the judge committed reversible error by denying his motion for acquittal at the end of the State's case. Defendant complains that the State relied on a single witness to establish its case, and that the witness, F.P., was not credible. When ruling upon a defendant's motion for acquittal after the State has rested, the trial judge must not weigh the State's evidence or evaluate the credibility of its witnesses. State v. Reyes, 50 N.J. 454, 458-59 (1967). Instead, the judge is obliged to give the State the benefit of all favorable inferences that a reasonable jury could draw, and must deny the motion for acquittal unless the evidence is insufficient to enable a reasonable jury to return a verdict of guilty. Ibid. Applying the Reyes standard, the judge properly concluded that the testimony of F.P. was sufficient to enable the jury to conclude that defendant engaged in the conduct for which he was on trial. We reject the claim defendant advances in Point IV.
In Point V, defendant argues that his sentence "was manifestly excessive" and must be reversed. In particular, he asserts that the base term of the sentence imposed on count one -- fifteen years -- should not have exceeded ten years; and that the sentences imposed on counts one and three should have been concurrent, not consecutive.
We reject defendant's claim that the fifteen-year base term the judge imposed on count one was excessive. The judge's findings of aggravating and mitigating factors are amply supported by the record, and the sentence does not shock the judicial conscience. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Moreover, the imposition of consecutive sentences does not offend the principles articulated by the Court in 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). As we held in State v. T.E., 342 N.J. Super. 14, 37 (App. Div.), certif. denied, 170 N.J. 86 (2001), the imposition of consecutive sentences for aggravated sexual assault and second-degree endangering the welfare of a child is permissible. As a threshold matter, we note that "[b]ecause of the additional element of parental duty, endangering is not included in and does not merge with aggravated sexual assault." Ibid. When imposing consecutive sentences on counts one and three, the judge separately stated the reasons for doing so, and relied on the factors articulated in Yarbough, noting that defendant's crimes occurred in multiple incidents, over a period of months, and that the crimes and their objectives were independent of each other. This analysis fully meets the requirements of Yarbough, and is consistent with our holding in T.E. We find no abuse of discretion in the sentence imposed.