October 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
L.L.M.,  Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-03-0291.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Sabatino and Rothstadt.
This direct criminal appeal arises from defendant L.L.M.'s conviction of second-degree sexual assault, N.J.S.A. 2C:14-2b, and endangering the welfare of a child, N.J.S.A. 2C:24-4a. The minor victim of the sexual abuse, J.M., is the younger cousin of defendant's second wife, C.M. The State alleged that on various occasions between 1999 and 2001 defendant sexually assaulted J.M. At trial, the State presented the testimony of J.M., defendant's estranged son,  and two friends of J.M. who testified as "fresh-complaint" witnesses.
On appeal, defendant essentially raises six reasons why his conviction should be reversed. Four of his arguments stem from evidentiary rulings made by the trial judge, specifically: (1) defendant should have been able to call certain law enforcement officers involved in the investigation to prove police and prosecutorial overzealousness; (2) the trial court erred by excluding extrinsic evidence of J.M.'s prior inconsistent statements; (3) the trial court improperly admitted the State's "fresh-complaint" testimony; and (4) the trial court improperly admitted prejudicial and irrelevant portions of defendant's interrogation video. Defendant further argues that the sentence he received was manifestly excessive. Finally, defendant asserts that his due process rights were infringed because the court's recording system was not working properly.
For the reasons that follow, we conclude that defendant's arguments lack merit and consequently affirm his conviction and sentence.
The proofs at trial were essentially the following.
Defendant was born in 1955 and grew up in West Deptford. Near the end of high school, defendant enlisted in the Marine Corps and entered boot camp. He was honorably discharged in June 1978.
Defendant was married to his first wife in 1979. The couple had two children together. Defendant testified that he was active in the lives of his children and coached their sports teams. At an unspecified time not indicated in the record, defendant and his first wife were divorced.
In 1999, defendant began dating C.M. C.M. had also previously been married. She had a daughter, C.W. C.M. and C.W. lived together in Pitman with C.M.'s parents, J.F. and M.F. Shortly after C.M. and defendant began dating, C.M. introduced defendant to her younger cousin, J.M., the minor victim in this case. J.M. was born in August 1988 and also lived nearby in Pitman with her family.
When J.M. first met defendant in 1999, she was having lunch at the house of her aunt, M.F. (C.M.'s mother). C.M. had come home with defendant and she introduced him as her boyfriend. In her trial testimony, J.M. described projecting the admiration that she had for her cousin C.M. onto defendant.
After her initial meeting with defendant, J.M. began having frequent contact with him because she spent a lot of time at C.M.'s house, particularly when defendant was visiting there with his son. Defendant and C.M. arranged to have custody of their children on the same weekends so that they could spend time with their children together. Because defendant's son was older than C.W., J.M. also would often come over because she and his son were closer in age. During her frequent visits to C.M.'s home, J.M. would swim, go out to dinner, take day trips, play with C.W., and watch movies in the home's theater-like attic.
One day, J.M., defendant, and C.W. were all in C.M.'s attic watching a movie. At some point, C.M. left to get pizza for dinner, while defendant and the children stayed and began playing hide and seek. In the course of the game, according to J.M., defendant put a blanket over both of their heads to hide from C.W., who was still in the room, and defendant began French-kissing J.M.
Although defendant evidently only kissed J.M. once that day, more inappropriate interactions between them ensued. According to J.M., the physical contact between her and defendant happened "like [the] natural progression of a relationship." As she explained: "[T]he first time he French-kissed me. Then he would do that a couple more times, whenever he would get the chance. And then it led into him touching my breasts. He would suck and lick my breasts." Eventually, defendant began to touch J.M.'s genital area on the outside of her shorts. On another occasion, J.M. testified that defendant "went up my shorts, moved my underwear to the side and was inserting his fingers into my vagina."
According to J.M., defendant also put her hand on his genital region and then "rub[bed it] on the outside of his clothing." J.M. also testified that on one occasion defendant "thrust his body on" her. Additionally, "[t]here [were] many times that [defendant] rubbed his erection against [her.]" J.M. testified that they never had intercourse, nor did defendant ever hit or threaten to hit her. J.M. estimated that "[fifty] times something sexual . . . happen[ed, but] not all of the things that he did to me would he do [fifty] times. But from the first time he French-kissed me all the way up until it ended . . . [fifty times] would be my guess."
The vast majority of this alleged abuse, according to J.M., took place at C.M.'s house. However, one alleged event took place at J.M.'s house and a limited number took place at defendant's house. J.M. explained that the sexual events took place at defendant's house because "a lot of times when [they] were there [C.M.] would be distracted." J.M. also stated that defendant "would just do the same things that he would always do to me if there was a few minutes of alone time between us. He would French-kiss me and fondle my breasts and touch my vagina." J.M. testified that on multiple instances, C.W. was present when the abuse occurred.
J.M. explained that "people would always be in the home when these events would occur. So [defendant] would always say, 'You have to be quiet. You can't tell anyone. [C.M.] would be so mad at us if she found out.'" She stated that "[defendant] never said anything in a violent nature. He only said things that made me feel shame, like I was doing something wrong. Those were the only types of things that made me not want to tell."
J.M. also testified that defendant frequently made inappropriate remarks. For example, J.M. explained that "[defendant] would tell me he was in love with me . . . [h]e would call me a knockout, tell me I was like a perfect 10, I was gorgeous. He would tell me he wanted to f me."
According to J.M., defendant instructed her that they needed to keep their relationship a secret. J.M. explained that their relationship initially made her feel "confused and scared" but that "as time went on, it actually made [her] feel good. I felt like he was my boyfriend . . . like he was giving me attention. . . . I thought he loved me." At the same time though, "he made me feel shame by saying . . . the things that he said." She also later stated that she "felt as though [she] was in a relationship with [defendant] during the times of the abuse."
J.M. explained that she thought defendant loved her, and she would, in turn, tell defendant that she loved him too. She would also call defendant at work because "[defendant] would just tell me to call him." She explained that, "[a] lot of times [defendant] would whisper like the same types of stuff he would say to me in person. You know, 'I love you so much, I want to be with you, ' sexual crude things that he wanted to do to me."
As described by J.M., defendant's acts upon her did "[n]ot [last] very long." J.M. explained that, "[u]sually there w[ere] other people home, so [defendant] didn't have access to me for very long." The only time she stated that she was completely alone with defendant was the encounter that took place at her house. She noted that defendant would never lock the door despite the fact that there was often someone in a nearby room. This led J.M. to feel "really anxious" that they would get caught. She explained that there were "never . . . long periods of time where he had access to me and lock [sic] the door behind. It was just like moments. . . . Like if he knew [C.M.] was giving [C.W.] a bath . . . [or] if we were on a different floor in the house from [my uncle] . . . chances are you would be able to hear him coming[.]"
On January 8, 2000, J.M. had an "instant messenger" ("IM") conversation with defendant's son over the internet. In that IM conversation, the son confronted J.M. about having previously witnessed J.M. laying on defendant. He wrote that he had witnessed J.M. "laying on [defendant] . . . [a]t [C.M.'s] house in the attic . . . during a movie." Nevertheless, J.M. denied in the IM conversation that any inappropriate conduct occurred. An excerpt of that IM conversation was admitted into evidence.
At trial, defendant's son also testified about the incident that led him to initiate this conversation. The event occurred as follows, according to the son:
I observed [defendant and J.M.] laying on the couch watching TV. [J.M.] was positioned on top of my father. And it appeared that they were snuggling. And it appeared that my father was touching her inappropriately . . . I saw him placing his hands in areas on her abdomen area and her breast area . . . [o]ver the clothes . . . they were just moving around in like an up-and-down motion.
According to J.M., defendant's abusive acts toward her ended in 2001. At that time, defendant and C.M. got married and moved to a different house in Pitman. J.M. testified that nothing happened in the new home after they got married.
After the alleged abuse ended in 2001, there were still numerous occasions when J.M. was in defendant's presence. At one point, J.M. even went on a vacation to Disney World with defendant, C.M., and other members of J.M.'s extended family. However, according to J.M., on the post-abuse occasions when she was in defendant's presence, she would "cold-shoulder" defendant and made it her "personal mission" to not "give him the satisfaction of hugging and kissing [her]."
During the period when the abuse was occurring, J.M. did not tell C.M. or anyone else in her family what defendant was doing to her. She explained that she was scared to tell C.M. and embarrassed to tell her family. J.M. also testified that she did not tell her family because she was "petrified" that she "would be ruining the family's relationship" and everyone was "so close."
Although J.M. apparently never told anyone about these events while they were occurring, she did testify, pursuant to the fresh-complaint doctrine, that she subsequently told two of her friends, B.E. and S.T. The first time J.M. told anyone about the abuse was "approximately" one to two years after the events had stopped, when she eventually told these two friends.
When J.M. was in eighth grade, around 2002 or 2003, she became friends with B.E. J.M. testified that during a sleepover, at an unspecified date, she told B.E. about the abuse she had experienced. B.E. likewise testified that on an undisclosed date, J.M. disclosed to her that she had been abused by defendant. B.E. recounted that:
[J.M.] spoke about [f]rench-kissing or kissing with tongues, about him touching her breasts, her laying kind of in his lap and just touching her in her pants and under her shirt or bathing suit, as it was.
B.E. also testified that she and J.M. had "talked about it many times since" the initial disclosure.
S.T., the State's second fresh-complaint witness, was a friend of J.M.'s since the eighth grade. S.T. testified that, when she was thirteen or fourteen, J.M. informed her that she had been sexually abused. Although the girls did not discuss the details of the abuse on the initial occasion, S.T. testified that in high school "[J.M.] told me that when [defendant] used to babysit her . . . they would play hide 'n seek. . . . [S]he would have to hide under the covers with him. . . . [S]he told me that he put . . . his hands down her pants." S.T. explained that she had "assumed . . . if he's putting his hands down her pants . . . he was fingering her." S.T. also testified that J.M. told her defendant had "put her hands on his private parts."
When J.M. was eighteen, she told her parents about defendant's acts of abuse. She explained that she was prompted to do so because she was nervous about the fact that C.W. was getting to the age that J.M. had been when the abuse took place. She also explained that by eighteen "I was an adult" and "I had a better understanding of how wrong it was what happened. And also that I have the ability to perhaps stop him from doing this to other children. So I kind of felt guilty that I wasn't trying to stop it." As a result of J.M.'s disclosure, J.M.'s extended family no longer speaks to one another or gets along.
J.M. eventually told the police what happened to her in 2007. When J.M. first disclosed her allegations to the police she spoke with Police Lieutenant Daniel J. McAteer, who was her DARE Officer in fifth grade. She later spoke with Detective Gregory Owens, from the Pitman Police Department, and Investigator M.J. Cramer from West Deptford, who took a detailed recorded statement from J.M.
In March 2008, a Gloucester County grand jury returned an indictment which charged defendant with four crimes: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); second-degree sexual assault, N.J.S.A. 2C:14-c(1) (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count four). After various pretrial evidentiary motions were heard, the case proceeded to a seven-day jury trial in August 2010.
The State presented testimony from J.M., defendant's son, and the two fresh-complaint witnesses. As of the time of trial, J.M. was twenty-two years old, and she had graduated from college. Defendant presented the testimony of his wife C.M., C.W. (his stepdaughter), C.M.'s parents, J.M.'s high school principal, Lieutenant McAteer, and several character witnesses. Defendant also testified himself and denied the State's allegations of abuse.
Through his testimony, defendant asserted that he was a supportive figure in J.M.'s life. He stated that at times he would talk with her and console her, but that he never touched her inappropriately.
Defendant's theory at trial was that J.M. contrived the allegations that she had raised against him. The defense vigorously challenged the credibility, plausibility, and sufficiency of the State's evidence, although it did not identify a clear specific motive as to why J.M. might have brought false charges. For example, on cross-examination of J.M., defense counsel implicitly suggested that it was improbable that she did not tell anyone in her family the things that were happening to her, in light of the fact that she had (1) been taught the difference between appropriate and inappropriate touch, (2) she had not known defendant very long before the abuse started occurring, and (3) she had testified that the abuse bothered and upset her.
Defense counsel also sought to impeach J.M.'s credibility by drawing out alleged inconsistencies between her trial testimony her statement to Lieutenant McAteer and her testimony before the grand jury For example JM testified that the first sexual encounter only involved kissing under the blanket However during her earlier police statement she indicated that defendant had touched her in addition to having kissed her The defense also presented multiple family photographs taken at various points in time during a period in which JM had testified she greatly disliked defendant in which JM nevertheless seemed happy
Upon considering these proofs the jury returned a guilty verdict on counts two and four There was a hung jury as to counts one and three Defendant moved for a new trial which the trial judge denied
At sentencing in February 2011 the judge merged counts two and four He then sentenced defendant to a term of seven years on the second-degree sexual assault count subject to the period of parole ineligibility prescribed by the No Early Release Act ("NERA") NJSA 2C:43-72 The judge also imposed various penalties three years of parole supervision upon release and community supervision for life Lastly the judge followed the State's recommendation to dismiss without prejudice counts one and three
On appeal, defendant raised the following points in his initial brief:
THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND COMPULSORY PROCESS BY PRECLUDING THE DEFENSE FROM CALLING [INVESTIGATOR] CRAMER AND DETECTIVE OWENS TO SHOW THE LACK OF AN ADEQUATE INVESTIGATION BECAUSE THEIR TESTIMONY WAS RELEVANT TO THE ISSUE OF POLICE AND PROSECUTORIAL "OVERZEALOUSNESS".
A. TESTIMONY CONCERNING THE LACK OF AN ADEQUATE INVESTIGATION WAS RELEVANT TO THE ISSUE OF POLICE AND PROSECUTORIAL "OVERZEALOUSNESS".
B. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED.
THE DEFENDANT'S DUE PROCESS RIGHTS TO A FAIR TRIAL AND FULL APPELLATE REVIEW WERE PREJUDICED BY THE TRIAL COURT'S FAILURE TO ENSURE THAT THE COURT'S RECORDING SYSTEM WAS OPERATING PROPERLY[.] (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN ADMITTING THE "FRESH COMPLAINT" TESTIMONY OF [B.E.] AND [S.T.] BECAUSE THE DISCLOSURES WERE NOT MADE WITHIN A "REASONABLE TIME" AND BECAUSE THE DISCLOSURES WERE NOT "INHERENTLY RELIABLE["].
THE TRIAL COURT ERRED IN DENYING TRIAL COUNSEL'S MOTION TO PRECLUDE TESTIMONY REFERRING TO J.M. AS THE "VICTIM."
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE TRIAL COURT'S SENTENCING DISCRETION.
A. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO BE SENTENCED TO A DOWNGRADED TERM FOR A CRIME OF THE THIRD DEGREE.
B. THE BASE CUSTODIAL SENTENCE OF 7 YEARS WAS MANIFESTLY EXCESSIVE.
Defendant also filed a supplemental brief in which he raises the following points:
SUPPLEMENTAL POINT I
THE TRIAL COURT ERRED IN FAILING TO EXCISE PREJUDICIAL MATERIAL FROM THE INTERROGATION VIDEO THAT WAS PLAYED TO THE JURY.
SUPPLEMENTAL POINT II
TRIAL COUNSEL'S ABILITY TO CROSS-EXAMINE THE STATE'S WITNESSES WAS IMPERMISSIBL[Y] LIMITED BY THE TRIAL COURT.
For the reasons that follow we reject all of these contentions.
Defendant first argues that he was improperly deprived of an opportunity to call the investigating officers, Detective Owens and Investigator Cramer. Defendant contends in this regard that the investigation following J.M.'s police statement was flawed because the State "rush[ed] to judgment." The investigation's predisposition of defendant's guilt was allegedly evidenced by the fact that C.W., C.M., and J.M.'s aunt and uncle were not interviewed. The proposed purpose for calling the detectives was "to establish that the police investigation was inadequate, and that [defendant's] arrest and subsequent indictment was based on a police and prosecutorial failure to interview witnesses who had relevant and credible evidence . . . [and who] denied that the offenses ever occurred." The reason it was necessary to reveal the flawed investigation, according to defendant, is because "the mere existence of this type of charge resulted in such severe prejudice, the shortcomings in the State's proofs imperiled the defendant's ability to defend."
In rejecting defendant's argument, the trial judge questioned the probative value of defendant's request to probe into the completeness of the police investigation.
[H]ow is a shoddy investigation relevant? We're here not about the police or about their investigation. We're here about [whether] the State can prove beyond a reasonable doubt what [defendant] did. . . .
[H]ow the police investigated the matter isn't probative here. . . . In fact, it takes the jury off on a separate tangent[.] . . . The [d]efendant's been indicted. We're here to try this case as to whether the State can prove him guilty beyond a reasonable doubt on the matters indicted.
In determining whether proposed evidence is relevant under N.J.R.E. 401, a trial court's inquiry "should focus on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Darby, 174 N.J. 509, 519 (2002) (quoting State v. Hutchins, 241 N.J.Super. 353, 358 (App. Div. 1990)). Only when "the evidence offered makes the [proposed] inference to be drawn more logical [should] the evidence . . . be admitted unless otherwise excludable by a rule of law." State v. Covell, 157 N.J. 554, 565 (1999) (citation omitted).
Even when proposed evidence appears to satisfy the standard of relevancy, the trial court has discretion to exclude it under N.J.R.E. 403 if it finds that its probative value is "substantially outweighed by the risk" that its admission would produce negative countervailing consequences, including "undue prejudice, confusion of issues, or misleading the jury." Among other things, the trial judge has discretion to preclude evidence that is too remote or collateral from the focus of the jury's factfinding. See, e.g., State v. Bulna, 27 N.J. 93, 100 (1958); Gonzalez v. Silver, 407 N.J.Super. 576, 593-95 (App. Div. 2009).
In reviewing such evidentiary rulings on appeal, we afford substantial deference to the discretion and first-hand assessments of the trial judge. State v. Ramseur, 106 N.J. 123, 266 (1987). Where a trial judge has excluded evidence that is apt to mislead or confuse jurors or create undue prejudice, appellate courts will uphold such rulings unless there is "a clear error of judgment." State v. DiFrisco, 137 N.J. 434, 496 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996) (citation omitted). Reversal is generally warranted only if "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (citations omitted).
The trial judge did not transgress these principles in exercising his discretion to exclude proofs concerning the police investigation in this case. Although such proof theoretically had some probative value, we discern no manifest denial of justice stemming from its exclusion. For one thing, the proof would have been cumulative, since defense counsel pursued this same theme of incomplete investigation in his questioning of several testifying witnesses suggesting that the police had focused too quickly on defendant as a suspect and had not asked enough questions of the family members. The trial judge did not abuse his discretion in preventing the jury from hearing such cumulative and collateral evidence.
In a related vein, defendant argues that the trial court erred in not admitting Investigator Cramer's written police report into evidence. He contends that the report contained statements that contradicted J.M.'s trial testimony. He maintains that the judge's exclusion of the report consequently deprived him of a fair trial. We disagree.
N.J.R.E. 613(b) specifically permits a trial judge to exclude extrinsic evidence of prior inconsistent statements made by a witness "unless the witness is afforded an opportunity to explain or deny the statement and the opposing party is afforded an opportunity to interrogate on the statement, or the interests of justice otherwise require." Here, as the trial judge noted, the defense did not afford the witnesses it sought to impeach with such "an opportunity to explain or deny th[ose] statement[s.]" N.J.R.E. 613(b). Nor was the Cramer report admissible for an alternative purpose, as the trial judge had already previously determined that Investigator Cramer's testimony would be irrelevant for purposes of attempting to prove that there was a "shoddy" investigation. Given these circumstances, the judge did not misapply N.J.R.E. 613, nor his discretionary authority to exclude evidence under N.J.R.E. 403.
Defendant's reliance upon State v. R.E.B., 385 N.J.Super. 72 (App. Div. 2006), aff'd after remand, No. A-2329-08 (App. Div. Apr. 26, 2010), certif. denied, 203 N.J. 95 (2010), is misplaced. In R.E.B., we overturned a defendant's conviction of sexual assault after identifying three specific errors that were so prejudicial that they "deprived defendant of a fair trial." 385 N.J.Super. at 91. In particular, the trial court's rulings excluded probative evidence that should have been made available to the jury to assess the victim's credibility, including proof that she had repeatedly lied to her family about being sexually assaulted by her coworkers. Id. at 81. See also State v. Guenther, 181 N.J. 129, 154 (2004).
In the present case, the record furnished on appeal contains no such evidence of J.M. making prior false accusations of sexual conduct by persons other than defendant. We are satisfied that any proof of inconsistency was sufficiently attenuated from the core allegations made about defendant's conduct to justify the trial judge's evidentiary ruling, particularly since defense counsel passed up the opportunity to raise the alleged prior inconsistent statements on cross examination.
The trial court soundly admitted the State's fresh-complaint testimony from B.E. and S.T.
During the pretrial hearings, the State indicated that it intended to call three fresh-complaint witnesses (B.E., S.T., and a third friend of J.M.'s, S.H.). Defense counsel opposed the State's proffer, arguing that the delay between J.M.'s reporting of the alleged incidents and the incidents themselves was too long to make it reasonable to admit evidence of her reports. Defense counsel further argued that testimony from three separate fresh-complaint witnesses was unduly prejudicial and cumulative. Although the judge rejected defendant's contentions of excessive delay, he did limit the State to presenting two, rather than three, fresh-complaint witnesses.
As an uncodified hearsay exception, the fresh-compliant rule allows, among other things, the State to introduce a sexual victim's out-of-court revelation of abuse to a confidante shortly after the conduct occurs. The fresh-complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. See State v. Hill, 121 N.J. 150, 163 (1990); State v. J.A., 398 N.J.Super. 511, 517 (App. Div. 2008).
"'[T]o qualify as fresh complaint, the victim's statements to someone [he or] she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary.'" State v. W.B., 205 N.J. 588, 616 (2011) (quoting Hill, supra, 121 N.J. at 163). "Whether these criteria for admissibility are satisfied is committed to the sound discretion of the trial judge." Ibid. (citing State v. Bethune, 121 N.J. 137, 147-48 (1990)).
Of importance to this case, "[t]he requirement that a victim's statements be made within a reasonable time after an alleged sexual assault to be admissible under the fresh complaint rule is applied more flexibly in cases involving children than in those involving adults[.]" State v. L.P., 352 N.J.Super. 369, 382 (App. Div. 2002). The relaxed timing requirements are justified because of "children's special vulnerability to be cajoled and coerced into remaining silent by their abusers[.]" Bethune, supra, 121 N.J. at 143.
For example, in State v. Hummel, 132 N.J.Super. 412, 423 (App. Div.), certif. denied, 67 N.J. 102 (1975), we held that fresh-complaint witnesses could testify to statements that were made three years after the beginning of the assaults and four to six weeks after they ended We also noted years later in LP that "courts in other jurisdictions have upheld the admission of evidence of statements by alleged child sexual abuse victims under the fresh complaint rule in cases where victims have delayed even longer than in Hummel before disclosing the abuse" LP supra 352
N.J.Super at 383 (citing Commonwealth v McKinnon 35 Mass.App.Ct 398 (1993) in which the court upheld a thirty-four month delay)
In WB the Supreme Court permitted fresh-complaint testimony that the victim complained more than a year and a half after the abuse In deciding whether to authorize the testimony the Court considered the circumstances surrounding the reason for delay The court reasoned that "[the victim] as defendant's stepdaughter appear[ed] to have lived with defendant at least some of the time during that interval and also indicated to [the fresh complaint witness] that she was afraid to report the abuse Both are factors that impact the determination of 'reasonableness'" WB supra 205 N.J. at 619 The Court also recounted other factors previously found by courts to be relevant in New Jersey and in other jurisdictions and specifically cited to a Massachusetts case in which the victim "had been fearful of disrupting [the] home where she and defendant continued to live." Ibid. (citing Commonwealth v. Hyatt, 31 Mass.App.Ct. 488 (1991)).
Here, numerous factors support the judge's determination to admit the fresh-complaint testimony. First, J.M. was a child when the sexual abuse occurred and, therefore, the "special vulnerability" of children warrants additional "flexibility" in construing the fresh-complaint rule. L.P., supra, 352 N.J.Super. at 382; Bethune, supra, 121 N.J. at 143. Additionally, J.M. testified that her delay was attributable, at least in part, to her fear that revealing this information would tear her family apart. Although this case is not identical to Hyatt, supra, where the victim lived with the defendant, the manifestly close nature of the relationship between J.M. and her extended family reasonably supports the State's theory that she felt pressured to delay revealing the abuse that she had experienced from defendant. Given the context, the delay in reporting has not been shown to be unreasonable to compel exclusion of the testimony of B.E. and S.T., which was accompanied by appropriate jury instructions issued by the trial judge. See Model Jury Charge (Criminal), "Fresh Complaint" (2007).
Defendant further argues that the trial judge erred in denying his pretrial motion in limine to bar the use of the term "victim" throughout the course of the trial. The judge did not misapply his discretion in declining to impose such a preemptive prohibition. In any event, defendant's brief on appeal fails to pinpoint any specific testimony or evidence that ultimately was presented at trial in which the term "victim" was uttered in referring to J.M. It is the defendant's obligation on appeal to identify such harmful instances and to demonstrate how they prejudiced him. See R. 2:10-2; State v. Aguirre, 287 N.J.Super. 128, 134 (App. Div.), certif. denied, 144 N.J. 585 (1996) (observing that the defendant must "specify with particularity" how he was prejudiced).
After defendant testified at trial, defense counsel initially requested, pursuant to N.J.R.E. 106, that his entire videotaped statement to Investigator Cramer and Detective Owens be played for the jury so as to provide a broader context to the portions of that statement that the prosecutor had used to impeach him during his cross-examination. The judge granted defendant's request. Thereafter, defense counsel modified his original request and asked that the videotape be edited to remove instances in which, on the audio track, the officers expressed personal opinions about defendant's credibility.
The trial judge declined to require the videotape to be edited, but instead allowed the entire tape to be played, issuing the following extensive limiting instruction:
During the interview, you heard questions or statements by the detectives that included comments or opinions relating to the credibility of [J.M.] and the credibility of the [d]efendant.
You're not to give those comments any weight. Determining the credibility of witnesses who have testified here and the weight to give to their testimony is for you and you alone to determine. You are the judges of the facts.
Thus, what has been said by the others, as to the credibility of any witnesses here is to be disregarded by you, as it relates to the credibility of those witnesses. That is solely your determination.
Also, there were questions and statements asked by the detective and statements by the [d]efendant, which included certain statements or allegations of facts. The facts that are contained within questions do not prove the existence of those facts.
You only consider such facts which, in your judgment, have been proven by the testimony of witnesses and from the exhibits admitted into evidence by the [c]ourt.
Defense counsel did not object to the contents of this instruction.
Although we agree with defendant that it would have been preferable to have delayed the trial to edit out the officers' personal opinions from the videotape, we conclude that the playing of the entire tape, along with the judge's extensive curative instruction, was not harmful error. See e.g., State v. Sterling, 215 N.J. 65, 101-02 (2013) (reiterating and applying the well-established proposition that a conviction should not be set aside if the trial court's error was harmless); see also State v. Macon, 57 N.J. 325, 333 (1971).
Defendant further argues, for the first time on appeal, that the trial court failed to ensure that its audio recording system was operated properly throughout the trial. He points in his brief to six instances where the trial transcript reflects an "inaudible" statement, and one in which there was a "recording malfunction." We find no basis to set aside defendant's conviction because of these lapses. There is no indication that defendant availed himself of the procedures in Rule 2:5-5(a) to settle the record and attempt to fill in the recording gaps. Nor does defendant make a proffer of any specific probative testimony or colloquy that was omitted from the transcribed record. Although we agree that the court must strive to create a full and accurate record of all trial proceedings, we see no reason to set aside defendant's conviction on this basis. The record supplied has been more than adequate to enable our appellate review function.
Lastly, we turn to defendant's claim that his sentence was manifestly excessive. In doing so, we adhere to our limited scope of appellate review. As the Supreme Court has repeatedly reaffirmed, "when [trial judges] 'exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a and -1b, it "may impose a term within the permissible range for the offense." Id. at 608.
Here, the trial judge found that the only applicable factors were aggravating factor nine (the need for deterrence) and mitigating factor seven (no prior offense history). N.J.S.A. 2C:44-1a(9), -1b(7). The judge then conducted an analysis in which he balanced these two factors against each other. He explained:
Child sexual assault is a very serious problem . . . [i]t must be deterred and this factor is given substantial weight. . . . The defendant has no history of prior delinquency or criminal activity and has led a law-abiding life for [a] substantial period of time. This factor is given substantial weight. . . . The aggravating factor and mitigating factor aren't equipoised when qualitatively evaluated.
After weighing and comparing these applicable factors, the judge sentenced defendant to seven years, which is on the lower end of the five-to-ten-year statutory range for the second-degree sexual assault conviction. N.J.S.A. 2C:43-6.
Given the broad discretion afforded trial judges on sentencing matters and the permissible sentence selected in this case, we see no reason to disturb the trial court's decision. Although we share the trial court's recognition that defendant has no prior criminal history, the sexual acts that he committed against the vulnerable minor cousin of his wife warrant the sentence that was imposed. Defendant has not demonstrated that the seven-year custodial term "shocks the judicial conscience." State v. Roth, 45 N.J. 334, 364 (1984) (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).