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State ex rel. K.S.

Superior Court of New Jersey, Appellate Division

July 9, 2013



Submitted February 12, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-0949-11.

Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Suzannah Brown, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent State of New Jersey (Lauren S. Kirk, Special Deputy Attorney General/ Acting Assistant County Prosecutor, of counsel and on the brief).

Before Judges Waugh and St. John.


K.S. was adjudicated a delinquent for child abuse, N.J.S.A. 9:6-3, an offense which, had he been an adult would have constituted a crime of the fourth-degree. The trial judge imposed one year of probation, a referral was made to the Department of Children and Families, and the judge ordered psychological therapy, a sex offender specific evaluation, regular school attendance, and no unsupervised contact with the victim. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we reverse.


The State alleged that K.S. abused K.E. during the summer of 2010. On December 1, 2010, L.E. initiated the matter by filing a complaint.[1] At the time of the incident, K.S. was eleven years old and K.E. was nine years old. The record of the adjudication hearing reveals allegations that on three occasions K.S. caused the victim to take his pants down and then K.S. touched the victim's buttocks. To convict K.S. of child abuse, the State had to prove beyond a reasonable doubt that he knowingly performed an indecent, immoral or unlawful act or deed that may have tended to debauch or degrade K.E.'s morals. State v. Overton, 357 N.J.Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003).

K.S. argues that the trial judge erred by admitting the testimony of L.E., the victim's mother, as to certain statements made to her by K.E. K.S. contends that the statements did not meet the requirements for admission under N.J.R.E. 803(c)(27), which permits the introduction of statements made by a child about a sexual offense under certain circumstance. We agree.

We first consider some general principles. N.J.R.E. 803(c)(27) "requires the trial judge to conduct a preliminary hearing pursuant to N.J.R.E. 104(a) to determine whether an out-of-court statement is sufficiently reliable, based on the 'time, content and circumstances of the statement' and then decide what is the 'probability that the statement is trustworthy.'" State v. P.S., 202 N.J. 232, 249 (2010) (quoting State v. D.G., 157 N.J. 112, 128 (1999)). "In determining whether the statement satisfies that standard, the judge should consider 'the totality of the circumstances.'" Ibid. (quoting State v. Roman, 248 N.J.Super. 144, 152 (App. Div. 1991)). "[A] non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse, includ[es] spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638, 656 (1990)); see also State v. Burr, 392 N.J.Super. 538, 570 (App. Div. 2007), aff'd in part, modified in part, remanded on other grounds, 195 N.J. 119 (2008). In this case, two factors which should have been more carefully considered are "interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Wright, supra, 497 U.S. at 821-22, 827, 110 S.Ct. at 3150, 3153, 111 L.Ed.2d at 656, 659-60).

We are required to accord deference to the factual findings reached by the trial judge. P.S., supra, 202 N.J. at 250. If those findings are supported by sufficient credible evidence, we "affirm unless the judge's determination amounted to an abuse of discretion." Ibid. (citing State v. Nyhammer, 197 N.J. 383, 411, cert. denied, 558 U.S. 831, 130 S.Ct. 65, 175 L.Ed.2d 48 (2009)). However, "we need not defer to the trial court's legal conclusions reached from the established facts." State v. Jefferson, 413 N.J.Super. 344, 352 (App. Div. 2010). "'If the trial court acts under a misconception of the applicable law, ' we need not defer to its ruling." Ibid. (quoting State v. Brown, 118 N.J. 595, 604 (1990)). Applying these standards to the case at hand, we conclude reversal is required.

The trial court conducted a N.J.R.E. 104(a) hearing on the admissibility of K.E.'s statements to his mother. Both K.E. and his mother L.E. testified at the hearing. After hearing the arguments of counsel, the judge found that K.E.'s statements to his ...

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