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State v. L.L.M.

Superior Court of New Jersey, Appellate Division

October 25, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
L.L.M., [1] 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM

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, [2] 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.

I.

A.

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."[3]

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."[4]

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 ...


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