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State ex rel. D.H.

Superior Court of New Jersey, Appellate Division

November 25, 2013

STATE OF NEW JERSEY IN THE INTEREST OF D.H., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-0692-12.

Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant D.H. (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).

Before Judges Reisner and Alvarez.

PER CURIAM

Defendant D.H., a juvenile, appeals from his final adjudication of delinquency dated April 13, 2012, for offenses which, if he were an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2c, and disorderly persons false imprisonment, N.J.S.A. 2C:13-3. Had he been tried as an adult, those convictions could have resulted in a ten-year prison term. As a juvenile, defendant was sentenced to two years of probation and attendance at an out-patient sex offender treatment program. For the reasons that follow, we affirm the adjudication of delinquency.

The pertinent trial evidence can be summarized as follows. Defendant and the victim, R.R., both fourteen years old at the time, were students at a special education and behavioral high school. At the trial, R.R. testified that, as the two of them were walking to their carpentry class, defendant shoved her into a hall bathroom, grabbed her by the hair, and forced her to perform oral sex on him. She testified that he ejaculated and the semen got on the jeans she was wearing. R.R. did not report the assault to the male carpentry teacher. However, shortly after that class ended, she told a female teacher's aide about the incident.

In his initial statement to the police, defendant denied having any sexual encounter with R.R., and denied that they were ever in the bathroom together. However, some weeks later, when the police were taking a buccal swab from defendant for the purpose of DNA testing, he made a spontaneous admission. According to the detective's testimony, defendant stated to him that he and R.R. were in the bathroom together and that she "forced" herself on him.

Forensic testing of the victim's jeans revealed the presence of semen in the areas of the garment where she had stated defendant ejaculated on her. According to the State's expert, DNA testing of the sperm matched the DNA sample taken from defendant with a near-absolute level of certainty.

Relying heavily on the forensic evidence, as well as defendant's admission to the detective, Judge Eugene A. Iadanza found that defendant sexually assaulted the victim.

On this appeal, defendant raises the following issues for our consideration:

POINT I
THE BLANKET BAN ON JURY TRIALS FOR JUVENILES PURSUANT TO N.J.S.A. 2A:4A-40, DEPRIVED THE 14-YEAR OLD DEFENDANT THE RIGHT TO A JURY TRIAL, DUE PROCESS OF LAW, AND EQUAL PROTECTION UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (Not Raised Below).
i. As with the Kansas Decision in In the Matter of L.M., 186 P.3d 164 (Kan. 2008), Since Recent Amendments to the Juvenile Code have Diminished the Rehabilitative Purposes and Goals of the Code, the Rationale for Nonjury Trials No Longer Applies and Consequently, the Blanket Jury Ban Pursuant to N.J.S.A. 2A:4A-40 Abridges the United States Constitution.
ii. The Blanket Jury Ban for Juveniles of N.J.S.A. 2A:4A-40 Violates the Plain and Unequivocal Language of the New Jersey Constitution's Guarantee of a Jury Trial.
iii. Alternatively, the Harmonization of the Remaining Rehabilitative Aspects of the Juvenile Code with the Jury Trial Right should at Least Give a Trial Court the Discretion of Providing Jury Trials for Juveniles Charged with Serious Offenses.
POINT II
THE TRIAL COURT'S PRECLUSION OF A TEACHING ASSISTANT'S PERSONAL OPINION ABOUT R.R.'S TRUTHFULNESS, CONTRARY TO N.J.R.E. 405(a) AND 608(a), DEPRIVED D.H. A COMPLETE DEFENSE AND A FAIR TRIAL.
POINT III
THE TRIAL JUDGE'S DISCOUNT OF EVIDENCE THAT R.R. WAS UNTRUTHFUL PRIOR TO THE CLOSE OF THE PROSECUTOR'S SUMMATION, SHOWS THAT HE IMPROPERLY PREDETEREMINED D.H.'S GUILT. (Not Raised Below).

Defendant's first point, asserting his right to a jury trial on federal and state constitutional grounds, is not properly before us on this appeal, because he did not ask for a jury trial or otherwise raise the jury trial issue in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even if we consider the issue it is without merit. We recently rejected the same arguments in State ex rel. A.C., 424 N.J.Super. 252 (App. Div. 2012), affirming Judge Iadanza's lengthy and scholarly opinion on the jury trial issue, 426 N.J.Super. 81 (Ch. Div. 2012).[1] We decline to reconsider A.C. here.

Defendant next contends that the trial court erred in precluding a teaching aide from testifying to his personal opinion as to the victim's truthfulness. See N.J.R.E. 405; N.J.R.E. 608. We cannot agree. After a N.J.R.E. 104 hearing, the judge permitted the witness to testify that he was familiar with the victim's reputation in the school community, and that her reputation for truthfulness was "50/50" or being untruthful "most of the time." However, the judge stated that the witness could not testify to his personal opinion as to R.R.'s truthfulness, without a proper foundation for that testimony. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 309-10 (2006). Defense counsel did not present that foundation, and hence the testimony was not admissible.

Defendant's final point requires little discussion. See R. 2:11-3(e)(2). During the State's summation, the judge briefly remarked that reputation evidence was not going to "make the decision" in the case. On this record, that proposition was self-evident, and did not evince bias or prejudgment. It is inconceivable that any trier of fact, judge or jury, would give the teacher's brief testimony about the victim's reputation for truthfulness greater weight than the undisputed forensic evidence and the defendant's admissions to the police.

Affirmed.


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