Opinion
DOCKET NO. A-1964-11T1
05-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.K., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the briefs). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Espinosa, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-01-0047.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the briefs).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant R.K. appeals his convictions for sexually abusing and endangering the welfare of his girlfriend's daughter. After an initial indictment was returned in June 2009, a grand jury sitting in Atlantic County returned a superseding indictment on January 6, 2011, charging defendant with 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 (count three); and fourth-degree child abuse, N.J.S.A. 9:6-3 (count four).
After a jury trial, defendant was found guilty on counts three and four, and not guilty on count one. The jury could not reach a verdict on count two.
At sentencing, counts three and four were merged, and defendant was sentenced to nine years imprisonment with a fifty-four month period of parole ineligibility. Count two was dismissed.
On appeal, defendant raises the following points for our consideration:
POINT ONEWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE ADMISSION OF OVERLY DETAILED AND CUMULATIVE FRESH COMPLAINT TESTIMONY WITHOUT AN APPROPRIATE LIMITING INSTRUCTION WAS PLAIN ERROR.
POINT TWO
THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT MADE IMPROPER USE OF DEFENDANT'S PREVIOUS CRIMINAL CONVICTIONS.
POINT THREE
THE REFERENCE TO A JUDGE'S APPROVAL OF AN ARREST WARRANT DENIED DEFENDANT A FAIR TRIAL.
POINT FOUR
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT FIVE
THE TESTIMONY OF [KIM] IMPROPERLY BOLSTERED THE CREDIBILITY OF [CLAIRE].
POINT SIX
THE TRIAL COURT IMPROPERLY RESTRICTED DEFENDANT FROM OFFERING EVIDENCE OF [KAREN'S] BIAS.
POINT SEVEN
THE COMMENTS OF THE PROSECUTOR DURING HER SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT.
POINT EIGHT
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
We employ pseudonyms to protect the privacy of the victim and for ease of reference.
I.
The following facts are taken from the trial record. Defendant and Karen began a relationship in 2000 which produced two children, a daughter, Kim, and a son, Raymond. Karen had a daughter from a prior relationship, Claire, who was born in 1999. During the times charged in the indictment, defendant was living with Karen and the three children as a family. Claire, who never knew her biological father, referred to defendant as "daddy."
In July 2008, defendant was grocery shopping with Claire and Kim when Claire saw a cat that was for sale. Claire asked defendant if she could have the cat. Claire's ninth birthday was approaching and defendant agreed to buy the cat for her.
Shortly after that, defendant entered Claire's bedroom late at night, woke her up and told her to come into the living room. When Claire asked why, defendant told her to come into the living room and he would tell her. Claire left her bedroom and saw defendant with her cat in the living room. Defendant told Claire that he wanted her to do something for him or he would do something to the cat. Defendant was on the couch with his pants pulled down and told Claire to rub his penis. Claire was scared and reluctant, but defendant threatened to give her cat away if she refused. Claire did not understand exactly what defendant wanted, so he took her hand and guided it over his penis, stroking it until he ejaculated. Defendant then sent Claire back to bed, telling her, "Go ahead, you're done now."
Claire testified that defendant forced her to masturbate him several times over the next few months. While most of these incidents occurred late at night in the living room, one took place in defendant's car while they were driving home from a recycling center. On this occasion, Claire testified that defendant touched and licked her genitals. Claire said she didn't want to participate in these activities but defendant had previously threatened her that, if she refused, "[she] wouldn't be living at the house anymore."
In March 2009, while the three children were waiting in the car for Karen, Claire told her sister, Kim, about the abuse. Kim testified that Claire then began to cry. After Karen returned to the car, Claire told her mother she had something important to tell her but wanted Kim to tell her because Claire "couldn't say it by herself."
After Kim described the abuse, Karen immediately pulled the car over and questioned both girls. After Claire repeated the allegations, Karen returned home, packed some clothes, and took the children to her father's home. Later that day, Karen contacted the Little Egg Harbor Township Police Department and reported the allegations.
On March 31, 2009, Trooper John Villamil, of the New Jersey State Police, interviewed Claire and obtained a warrant for defendant's arrest. Three days later, the U.S. Coast Guard arrested defendant as he was returning from a trip on a clamming vessel.
II.
A.
At trial, Karen and Kim were permitted to testify under the fresh-complaint doctrine as to their conversations with Claire regarding defendant's abuse. Defendant argues that this testimony was unduly detailed and cumulative and the court's failure to instruct the jury on the limited use of fresh-complaint testimony was plain error.
Because this issue and several other issues were not raised at trial, we review them for plain error. R. 2:10-2; State v. Savage, 172 N.J. 374, 387 (2002). The "[r]eversal of [a] conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).
The fresh-complaint doctrine is "applied widely in rape and morals cases and permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice." State v. Balles, 47 N.J. 331, 338 (1966), cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). "At trial, fresh-complaint evidence serves a narrow purpose. It allows the State to negate the inference that the victim was not sexually assaulted because of her silence." State v. Hill, 121 N.J. 150, 163 (1990). In order for testimony to be admitted under the fresh-complaint doctrine, the statements must be made to someone the victim "would ordinarily turn to for support[,] must have been made within a reasonable time after the alleged assault[,] . . . have been spontaneous and voluntary," and the victim must be a witness at trial. Ibid. Further, the details of the complaint are not admissible, only the act of the complaint itself. Ibid.
The trial judge conducted Rule 104 hearings and heard the testimony of Karen and Kim outside the presence of the jury. As to Karen, the judge found:
Now the statements made by [Claire] to her [m]other regarded acts of sexual assault perpetuated by the Defendant and they show that the victim confided clearly in somebody with whom she ordinarily would turn to for advice and comfort and support. . . .
The statements were made spontaneously to her sister and then from the sister's prompting, while it may not be spontaneous in the traditional sense of the word, it was done impulsively so, it was done directly and forthrightly so after the impetus was made by the sister to be fulsome in disclosing this information to her mother. It did not come in relation to questioning
beyond, please tell me what happened by mother to daughter. It wasn't done in any kind of leading or suggestive way, and as such there is confidence that the statements when made were made spontaneously and impulsively.
. . . .
Now while not being offered for the truth of the matter asserted substantively, they do have probative value in order to explain the facts and circumstances of making the disclosures and to show the context in which the child came forward ultimately with her complaints. The child is going to be heard from here, will be subject to cross examination, and gives further context for the jury to understand the ongoing nature of the allegations for their consideration as to what actually occurred.
Any prejudicial effect of these statements is clearly outweighed by that probative value to allow the jury to understand the context in which the allegations occurred over the time frame in which they have to decide what happened on the matters charged in the indictment.
And for those reasons I determine that the statements made by [Claire] to her mother regarding the nature of the complaints, that she was made to manipulate her mother's boyfriend to the point of ejaculation and that he placed his mouth on her genital organs, shall be admissible . . . .
After hearing Kim's testimony, the judge concluded it was also admissible under the fresh-complaint doctrine:
Here, the State wishes to admit the statements of sister [Kim] regarding statements made by [Claire] to her. The State intends to use these matters as set
forth in its brief to show that the victim confided in someone about the incident in a timely manner. Here, the court received testimony from [Kim] outside of the presence of the jury and found [Kim] to be very credible and very forthright and very candid regarding her recollection of the events. Clearly, the younger sister described as the best friend of [Claire] is somebody with whom [Claire] would be expected to confide secrets. Relationship between sisters is very indicative that such information would be shared on a confidential and secret basis, and for that reason it would indicate that it was someone that she would naturally turn to [for] support in certain circumstances. Additionally, it appears the statements made by [Kim] to [Claire] were spontaneous and did not result in any prodding or exacting methods to take the information from her. They were given -- the information was given to [Kim] while [Claire] was still naturally upset based on the incidents that she was reporting.
Finally, they were spontaneously given in the context of the mother/daughter and sister relationship that was going forth in the car when they were altogether [sic] heading to the video store when apparently [Claire] was under such pressure in her own mind that she needed to bring this information out, used her sister to help her bring the information forward and providing it to her mother.
For all of those reasons, it does appear that the information was appropriately brought forth by the State as fresh-complaint evidence . . . .
We find no abuse of discretion in the trial court's admission of the testimony of either Karen or Kim. Claire testified that defendant's abuse began in July or August 2008, around her ninth birthday. Given Claire's age and the ongoing nature of the abuse, a seven-month delay in disclosure was not unreasonable. Moreover, defendant's threats to Claire that he would harm her cat or put her out of the house are factors that would allow a vulnerable child additional time to make a fresh-complaint. See State v. Bethune, 121 N.J. 137, 143-46 (1990) (admitting fresh-complaint testimony despite a one-year gap between the abuse and the complaint because the victim lived with the defendant in a foster care placement that created an "aura of intimidation"). The disclosure was made to Claire's mother and stepsister, both people Claire would ordinarily turn to for support. Finally, the disclosure was made spontaneously and not in response to questioning. See Hill, supra, 121 N.J. at 163.
Although Karen questioned Claire after the initial disclosure, her questions were not coercive and such questions "do not rob a complaint of its admissibility under the fresh-complaint rule." Bethune, supra, 121 N.J. at 144 (citing Hill, supra, 121 N.J. at 167). Considering Claire's age, her relationship with the questioner, the circumstances under which the questioning took place, the fact that Claire prompted the discussion, the non-leading nature of the questions, and the specificity of the questions regarding the acts alleged, we are satisfied that the trial court properly concluded that Claire's statements to Karen were voluntary.
Defendant next argues that the testimony should not have been allowed because it was overly detailed and cumulative, causing defendant undue prejudice. At trial, Karen testified:
Q: Are you and [defendant] still together today?
A: No.
Q: Why not?
A: Because he sexually assaulted my daughter.
Q: When did you find out? When did [Claire] tell you?
A: On March 30th of 2009.
Q: Can you tell us how you found out?
A: Me and my three children were going to get a movie at a video store and [Claire] told me she had something to tell me, but she wasn't able to and she asked if her sister could tell me.
Q: Without telling us what [Kim] said, did [Kim] at [Claire's] prompting tell you something?
A: Yes.
Q: When you heard what [Kim] had to say, what was your reaction?
A: I was shocked.
Q: What did you do?
A: I pulled over and asked them to repeat what they just told me.
Q: Did they repeat that?
A: Yes.
Q: What did you do then?
A: I turned around, went back to my house.
Q: How were you feeling at this time?
A: Very upset.
Q: What did you do when you returned?
A: I asked [Claire] to explain to me what happened.
. . . .
A: I asked her to tell me what he made her do.
Q: And please tell the jury what did [Claire] tell you at that time?
A: She told me that he made her touch his private area.
Q: Did she tell you what happened when he touched her, when she touched his private area?
A: . . . [H]e made her touch him and go like this until yellow-white stuff came out of his private area.
. . . .
Q: And when you went back to your parents' house, did you sit down with [Claire] again?
A: Yes.
Q: And did you ask her to tell you?
A: Yeah, I asked her if anything else had happened, and she told me that he did do other stuff to her.
Q: What did she tell you?
A: She told me that he touched her private areas and licked her private areas.
Q: What was her demeanor when she told you?
A: She was very, very upset. She was crying, she was scared.
Q: When you said she was scared, did she tell you that any threats were made to her?
A: Yes.
Q: What did she tell you?
A: She said that he told her . . . if she ever told anybody, that he would hurt her and he would hurt her family and her cat that he had got her for her birthday.
"New Jersey courts have adhered strictly and uniformly to the principle of disallowing excessive details." Bethune, supra, 121 N.J. at 147. However, "details which . . . identify the nature of [the] complaint" are permissible. State v. J.S., 222 N.J. Super. 247, 254 (App. Div. 1988). Here, with the exception of Karen's statement that defendant sexually assaulted her daughter, which was not objected to, Karen's testimony was limited to the details necessary to describe the nature of Claire's complaint. None of the details provided by Karen or Kim were repeated or received unnecessary emphasis and both versions were consistent with Claire's testimony.
Defendant relies on Bethune and J.S. in arguing that the testimony of Kim and Karen was excessively detailed and thus improper. We find both cases distinguishable. In Bethune, the Court held a witness's testimony that the victim told her she was assaulted many times by the defendant was inadmissible under the fresh-complaint doctrine, as the defendant had only been charged with one incident of sexual abuse, the victim testified to only one incident, and there was no other evidence of the alleged continuous abuse on the record. 121 N.J. at 147.
In J.S., we held that the testimony of three witnesses that the victim told them that the defendant penetrated her vagina with his finger was inadmissible as fresh-complaint evidence as it was more detailed than the victim's version, who testified only to touching and said nothing about penetration. 222 N.J. Super. at 254. There, we concluded that "the testimony given . . . was excessively detailed in relating what was said by" the victim. Id. at 252.
In contrast, the testimony of Karen and Kim did not provide any details that were not testified to by Claire. Many additional details were provided by Claire, including descriptions of the locations where the abuse took place; what defendant was wearing; how she felt; how she asked him to stop; and specific threats defendant made to her.
More analogous to the present case is Balles, where the Court approved fresh-complaint testimony that the defendant put his hands down the victim's panties and touched her, because the witness "did not elaborate and could hardly have said less and still identified the nature of [the victim's] complaint." 47 N.J. at 339. We are satisfied that the testimony provided by Karen and Kim was not so detailed as to violate the fresh-complaint doctrine.
Defendant also claims that, after the State called Karen as a witness, the testimony of Kim was duplicative. In Hill, the Court reinforced the concept that trial courts were in the best position "to decide whether to limit or exclude witnesses." Hill, supra, 121 N.J. at 169. "It would usurp the trial court's discretion to establish a blanket policy restricting testimony that fully qualifies for admissibility under the fresh-complaint rule but is duplicative or prejudicial." Ibid. The Court held that, once testimony qualifies under the fresh-complaint doctrine, "the trial court should assess, in light of the rule's narrow purpose of negating inferences that the victim had failed to complain, whether repeated testimony of the victim's complaint is irrelevant or prejudicial to the defendant." Ibid. Here, the trial court properly found that Kim's testimony was admissible, as it was relevant and necessary to explain that Claire was initially reluctant to speak with her mother and asked Kim to tell her about the abuse. The testimony was not cumulative or repetitive because it was necessary for the jury to hear the sequence of events of March 30, 2009, to understand how Karen eventually learned of the abuse.
We note that the trial court exercised discretion in limiting the testimony of Trooper John Villamil, to whom Claire repeated the allegations. The court found that portions of the trooper's testimony, proffered under the "tender years" exception, was unnecessary and repetitive.
Defendant next claims that the trial court failed to instruct the jury properly on fresh-complaint testimony. When Karen and Kim testified, the jury was given no special instruction as to how to treat their testimony. We note that no request was made for such an instruction at trial, when this omission could have been cured. During the jury charge, the following instruction was provided:
The law recognizes that stereotypes about sexual assault complaints may lead some of you to question [Claire's] credibility based solely on the fact that she did not complain about the alleged abuse sooner. You may not automatically conclude that [Claire's] testimony is untruthful based only on herThis charge was provided to defendant's counsel and the prosecutor in advance, and both consented to it. No objection was made after the charge was read to the jury, but defendant now argues that this instruction and the failure to provide limiting instructions constitutes plain error.
delayed disclosure. Rather, you may consider the delayed disclosure along with all of the other evidence including [Claire's] explanation for her delayed disclosure when you decide how much weight to afford to [Claire's] testimony.
"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). "It is a well-settled principle that appropriate and proper jury charges are essential to a fair trial." Savage, supra, 172 N.J. at 387. Jury instructions are "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). A portion of the jury instruction alleged to be erroneous, however, "cannot be dealt with in isolation . . . [and] should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). To warrant a reversal, "improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case." State v. Darrian, 255 N.J. Super. 435, 453 (App. Div.), certif. denied, 130 N.J. 13 (1992).
After admitting fresh-complaint evidence, "[t]rial courts should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case." Bethune, supra, 121 N.J. at 148. "The trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent." Ibid.
Failure to give a limiting instruction on the use of fresh-complaint testimony does not automatically amount to plain error. State v. Tirone, 64 N.J. 222, 227 (1974). In Tirone, the defendant was convicted of rape after going on a date with the victim earlier in the evening. The following morning, the victim called her brother's wife and recounted the experience. She also told her brother, then reported the incident to the police. Id. at 225. At trial, the victim's brother testified under the fresh-complaint doctrine. Ibid. Two police officers also testified that they "observed cuts on the inside of the victim's swollen lip and discoloration marks on her throat." Ibid.
The defendant did not testify but called three witnesses who provided an alibi. Id. at 225-26. The jury was not given a limiting instruction about the fresh-complaint testimony. The Court held that while "an appropriate limiting instruction should have been given by the trial judge," the error was not clearly capable of producing an unjust result. Id. at 227. The Court found
[t]he evidence of defendant's guilt of the crime was overwhelming. No evidence was adduced which contradicted the State's proof that the victim had been beaten, choked and ravished. The bodily injuries she sustained were fully corroborated by witnesses who had the opportunity to observe them. In the light of such evidence we conclude that the error was harmless and did not mandate a reversal.
[Ibid.]
The State argues that the evidence of defendant's guilt was more substantial than in Tirone. As in Tirone, where the victim's testimony was corroborated with physical evidence of a beating and strangulation, Claire's testimony was corroborated by Kim and Karen. Although Kim provided testimony of Claire's fresh-complaint, she also corroborated Claire's testimony as to defendant's late-night visits to the bedroom she shared with Claire:
Q: Did you share a bedroom with your sister?
A: Yes.
Q: What kind of beds did you sleep in?
A: A bunkbed.
Q: Where did you sleep?
A: On the bottom.
Q: Where did she sleep?
A: On the top.
Q: How did she get down from the top?
A: On the ladder.
Q: If she went down that ladder, would she always wake you up?
A: No.
Q: Did you ever see your dad in the room?
A: Yes, one night he came in, and he came in and I heard him because he was speaking louder, and he said come on [Claire] it's time to wake up, it's time to do it, and she said no, I don't want to, and then he left, I guess because he gave up on trying to get [Claire] out of the bed.
In addition, Karen saw defendant and Claire alone on the living room couch late one night, and Claire was crying. While this corroboration may not be as compelling as the physical evidence in Tirone, it is substantial enough to convince us that the trial court's failure to instruct the jury on the limited weight of the fresh-complaint testimony did not amount to plain error "clearly capable of producing an unjust result." R. 2:10-2.
B.
Defendant next argues that the prosecutor's cross-examination of defendant made improper use of his prior convictions. As there were no objections during trial, we again review under the plain error standard. R. 2:10-2.
Prior to trial, the court conducted a Sands hearing and ruled that the defendant's numerous burglary convictions in 2001 were admissible as to defendant's credibility as a witness. The State was permitted to "question the defendant about the number of indictments . . . by reference to the degree and nature of the offenses without going into each of the individual counts recited in each of those indictments."
State v. Sands, 76 N.J. 127 (1978).
During his direct examination, defendant admitted to going on a crime spree and committing several commercial burglaries after losing his job. On cross-examination, the prosecutor questioned defendant as to these convictions:
Q: In fact, you spent six years in prison for your crimes, is that correct?
A: No, I spent five years in prison for my crimes.
Q: Five years?
A: Yes, ma'am.
Q: So you have no problem breaking the law if it's necessary for your needs, correct?
. . . .
A: At the time when I was 24 years old, I did. I had no problem. Obviously, I'm a mature person now.
Q: Thank you. You do what you have to do to get what you want, correct?
A: No, ma'am.
Q: But you did what you had to do to get--
A: I did what I had to do. I don't do what I have to do.
Q: So if you have to, you'll break the law?
A: Not any longer, ma'am.
Such convictions are admissible "[f]or the purpose of affecting the credibility of any witness . . . . " N.J.R.E. 609. A trial court's decision to admit or deny such a conviction rests within its sound discretion. Sands, supra, 76 N.J. at 144. We will not reverse a trial court's decision absent an abuse of discretion. State v. Jackson, 278 N.J. Super. 69, 79 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995).
Evidence of prior convictions cannot be admitted to show defendant's bad character or propensity to commit a crime. State v. Driver, 38 N.J. 255, 291-92 (1962); see State v. Pennington, 119 N.J. 547, 572-75 (1990); see also State v. Johnson, 65 N.J. 388 (1974) (finding that the prosecutor exceeded the "bounds of fair play" when, on cross examination, the prosecutor did not ask the defendant a single question about the crimes he was on trial for but merely reviewed his criminal record and on summation harped on the defendant's record to show he was a hardened criminal).
Unlike the facts in Johnson, the prosecutor here abided by the limitations set by the trial court, referencing only the type and number of convictions, without mention of any details. In the prosecutor's summation, there was only a brief reference to defendant's criminal record which mentioned the number of convictions, the length of defendant's incarceration, and the amount of restitution he was required to pay.
We find no reason to conclude that the trial court abused its discretion by admitting the convictions. Additionally, we note that, in the jury charge, the court gave an appropriate instruction concerning the limited use of the convictions.
C.
Defendant next contends that Trooper Villamil's reference to a municipal court judge's approval of defendant's arrest warrant and the details of his arrest denied him a fair trial. At trial, Trooper Villamil testified that, after his interview of Claire, he sought a warrant for defendant's arrest:
A: I contacted the municipal court judge and advised him of the facts of the case.
Q: And, in fact, issued a warrant?
A: Yes, that's correct.
Q: Okay. How was the defendant apprehended?
A: The defendant was apprehended by the U.S. Coast Guard. He was on a clamming vessel out at sea and they boarded the ship and took custody of him.
Defendant did not object to this testimony at trial and we consider his claim under the plain error standard. R. 2:10-2. Defendant relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999). We find both cases clearly distinguishable, as they were drug possession cases involving search warrants in which the prosecutors made several prejudicial references to the warrants.
Here, there was no mention of a search warrant, only a warrant for defendant's arrest. Also, the reference to the arrest by Trooper Villamil was brief and there were no prejudicial comments by the prosecutor, in contrast to the comments made in Milton and Alvarez.
In State v. Koedatich, 112 N.J. 225, 312 (1988), the Court affirmed a defendant's conviction where the trial court permitted evidence of the defendant's arrest, finding that the prosecutor "has a right to give some background evidence as to some of the circumstances leading up to [the arrest]."
We are satisfied that the brief reference to defendant's arrest by Trooper Villamil was not so prejudicial that it denied defendant a fair trial.
D.
Defendant contends that the trial court should have granted his motion for a new trial because the verdicts were inconsistent. We disagree.
Under Rule 3:20-1,
[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Banko, 182 N.J. 44, 53 (2004). There is no obligation for the reviewing court to "reconcile the counts on which the jury returned a verdict of guilty and not guilty." State v. Muhammad, 182 N.J. 551, 578 (2005). Courts are not allowed "to conjecture regarding the nature of the deliberations in the jury room." Ibid.
When reviewing a jury finding, our task is to "determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty." Ibid. It is not the job of the court to "speculate whether verdicts resulted from jury lenity, mistake, or compromise." Ibid.
Here, defendant was charged with aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. He was convicted of endangering the welfare of a child and child abuse, and acquitted of the more serious charge of aggravated sexual assault. Defendant reasons that since the jury did not find defendant guilty of aggravated sexual assault, they rejected every form of sexual conduct, and therefore the jury could not find the element of sexual conduct necessary for a conviction of endangering the welfare of a child.
The trial judge considered defendant's motion and found sufficient evidence for the jury to convict defendant on the endangering and child abuse charges:
Here, evidence was presented to the jury that over the course of a nine-month period,
defendant sexually assaulted the victim in the family home and in his truck. The victim gave great detail at her testimony about the sexual contact. She testified that on numerous occasions, defendant would take her into the living room of the family home or in his truck, would take his pants down and force her to rub his genitals until yellow stuff came out and that he also touched her genitals.
There was enough evidence in the record to support . . . convictions on Counts 3 and 4 accordingly. Even just the testimony of the victim where she stated that the defendant exposed his genitals to her would be enough to support a conviction on both counts 3 and 4.
The jury's decision was not against the weight of the evidence and defendant was not entitled to a new trial.
E.
Defendant next argues that Kim's testimony, that she believed her sister, constituted improper bolstering of Claire's credibility. During her direct examination, Kim testified that Claire told her that defendant made Claire "rub his pee pee." The prosecutor then asked:
Q: What did you say when she told you this?The defense did not object to this testimony and we again review under the plain error standard. R. 2:10-2.
A: I was kind of, like I was sad for her and I believed her because it's really sad. She wouldn't be making up things if it was not bad.
Under N.J.R.E. 607, "for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." The State may not introduce evidence establishing the credibility of a witness through the testimony of another witness. State v. Frisby, 174 N.J. 583, 593-94 (2002). "The mere assessment of another witness's credibility is prohibited." Id. at 594. In State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), we held that "the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury."
Kim's comments were unsolicited by the prosecutor and the jury was instructed, at the conclusion of trial, that it was their duty alone to judge the credibility of the witnesses:
you're the judges of the fact and, as such, you're to determine the credibility of the various witnesses as well as the weight to be attached to their testimony. You and you alone are the sole and exclusive judges of the evidence, the credibility of the witnesses and the weight to be attached to the testimony.
"Ordinarily a defendant will not be heard to claim prejudice if defense counsel does not interpose a timely and proper objection to the improper remarks." State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953). If a timely objection is made, the trial judge has the opportunity to "rectify the situation or to reduce the impact of such comment by taking corrective action." State v. Bucanis, 26 N.J. 45, 57, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Where, as here, no timely objection was made, the court must determine whether the comment was "clearly capable of producing an unjust result." R. 2:10-2. The possibility of such an unjust result must be "'one sufficient to raise a reasonable doubt as to whether the error led the jury to the result it otherwise might not have reached.'" State v. Benedetto, 120 N.J. 250, 261 (1990) (quoting State v. Macon, 57 N.J. 325, 335 (1971)). Here, the issue is whether there is a sufficient possibility the unsolicited remark led the jury to find defendant guilty, where it otherwise might have found him not guilty. We are satisfied that it did not, and does not amount to plain error requiring a new trial.
F.
Defendant called C.B. to testify to a conversation she had with Karen where Karen told her she suspected that defendant was cheating on her. The prosecutor objected, claiming the statement was hearsay. Defense argued that the testimony was offered to show bias and motive. The court sustained the objection, mistakenly ruling the statement was hearsay. It was not hearsay because the defendant did not offer it to prove the truth of the statement Karen allegedly made to C.B. N.J.R.E. 801(c).
Defendant contends that the court improperly restricted defendant from offering evidence of Karen's possible bias. Either "party may show bias, including hostility, of an adverse witness" at trial. State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996); see also State v. Pontery, 19 N.J. 457, 471-73 (1955). Further, bias can be proven through the use of extrinsic evidence. N.J.R.E. 607. "Utterances indirectly indicating fear, ill-will, excitement, or other emotion on the part of the speaker are also admissible, whether the person be one whose state of mind is in issue . . . or a witness whose bias is to be ascertained." Gorrell, supra, 297 N.J. Super. at 150.
In Gorrell, the defendant was convicted of aggravated assault. Most of the evidence against the defendant came from the defendant's brother-in-law. Id. at 148. The defendant wanted to introduce evidence of his brother-in-law's bias through previous threats he had made to kill the defendant. Ibid. The trial court found the threat inadmissible, but we disagreed:
If [the brother-in-law] was hostile enough toward defendant to want to kill him, that
could reasonably have raised a doubt in the minds of the jurors about whether [the brother-in-law's] testimony was truthful or whether it was fabricated to serve his hostility. A threat to kill, depending on the circumstances under which it was made and how it was expressed, could certainly be evidence that the person who uttered the threat felt extremely hostile toward the person whom he threatened. Common sense therefore strongly suggests that evidence of the threats should be admissible, not because the person who is alleged to have uttered them denies that he did so, but because the threats themselves may be strong evidence of the state of mind of the person who threatened and therefore may shed material light on the question whether his testimony should be believed.
[Id. at 148-49.]
Here, C.B.'s testimony was admissible to demonstrate Karen's bias against defendant. Although the evidentiary ruling was erroneous, it did not constitute plain error requiring reversal, as it was not clearly capable of producing an unjust result. We are satisfied that the additional testimony, that Karen was considering leaving defendant, would not have changed the result of the trial.
Karen did not provide direct evidence implicating defendant, and neither her suspicion that defendant was cheating on her nor her plans to leave defendant, rise to the level of the hostility in Gorrell. C.B. had already testified that Karen knew defendant was cheating on her and her additional testimony on this point was inconsequential, not warranting reversal.
The accusations of cheating were mutual, as defendant testified without objection that he suspected that Karen was cheating on him.
--------
G.
Defendant next argues that during closing arguments the prosecutor made improper comments which bolstered the credibility of Claire and inflamed the jury. During summation, the prosecutor stated:
I ask that you stay focused on what this case is really about and what happened, the sexual assault of a little girl. The defendant is not the victim in this case. [Claire] is the victim. I told you in my opening this case was about credibility. Either you accept what is true what [Claire], [Kim], [Karen], Trooper Villamil and Detective Adamson tell you, or you accept what the defendant tells you. There is no in between. There is no middle ground here.
. . . .
[Claire] testified under oath and has an incentive to tell the truth. She actually has no reason to lie, no motive to fabricate. Does anyone in this courtroom think it was fun for [Claire]? This child had to go to the police and tell her story, tell the trooper about sexual conduct most of us wouldn't talk about, have to come into court and talk about it to a bunch of strangers in front of her dad. When exactly did this become fun for [Claire]?
We again note that there was no objection to the prosecutor's summation and we review for plain error. R. 2:10-2. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999); see also State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). Moreover, "prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82. However, it is the prosecutor's "duty to refrain from improper methods calculated to produce a wrongful conviction." Id. at 83. "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Ibid.
"A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004)).
In reviewing the prosecutor's comments, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991). Defense counsel's conduct is relevant to the determination whether the prosecutor's comments amounted to prejudicial error. Young, supra, 470 U.S. at 12, 105 S. Ct. at 1045, 84 L. Ed. 2d at 11. Within this context, we "consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly." Ibid.
Defendant's counsel argued that Claire had reason to lie about defendant's sexual assault. He noted her worsening relationship with defendant, including defendant's stern discipline, defendant sending Claire's cat to her grandparent, and defendant spanking Claire in public.
In defense counsel's summation, he attacked Claire's account of the abuse, suggesting that defendant would not choose a plain view location such as the living room. Counsel also noted that Claire did not complain of the abuse earlier, or tell the State Trooper about defendant licking her private parts when he first interviewed her. Given the attack on her credibility, we do not find that the prosecutor's comments rose to the level of misconduct and the prosecutor's argument that Claire lacked a motive to lie was proper.
Defendant also argues that the prosecutor's comments at the end of summation constitute misconduct, requiring reversal. The prosecutor stated:
Members of the jury, when we all look back on our childhoods, we think about baseball games, playing soccer, maybe some ballet lessons, but when [Claire] thinks back on her childhood, she's going to remember the defendant and she's going to remember what he did to her. You, ladies and gentlemen, you are the law here today. You have the power. Tell that man I know what you did to [Claire]. Tell him you know what he made [Claire] do. Tell him he's not going to get away with it. Find the defendant guilty on all counts of the indictment. . . .Specifically, defendant argues that these comments misstate the jury's role as triers of fact.
The prosecutor's suggestion to the jury that Claire will have unpleasant childhood memories of her abuse by defendant, was not a rebuttal of any specific argument made by defense counsel or an argument addressed to the State's proofs at trial. While the remarks may have been an attempt to appeal to the jury's passions, they were brief and isolated and there was no objection. As a result, the judge was not presented with an opportunity to give a curative charge.
The jury was instructed by the judge that "as jurors, it's your duty to weigh the evidence calmly and without passion, prejudice or sympathy." While the comments of the prosecutor might have elicited sympathy for the victim, the jury was properly instructed not to weigh the evidence with sympathy. We find that the remarks were not inflammatory or beyond the bounds of propriety and were not clearly capable of producing an unjust result.
H.
Finally, defendant maintains that the trial judge imposed an excessive sentence. We review a sentence imposed by the trial court by determining if the trial court "(1) followed the sentencing guidelines; (2) based its determination of aggravating and mitigating factors on credible evidence in the record; and (3) applied the guidelines in a manner that did not result in a sentence that shocks the judicial conscience." State v. Morgan, 423 N.J. Super. 453, 474-75 (App. Div. 2011); see also State v. Dalziel, 182 N.J. 494, 501 (2005). "A reviewing court may not substitute its own judgment for that of the sentencing court." State v. Megargel, 143 N.J. 484, 493-94 (1996). We must make sure that "an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence." State v. Johnson, 42 N.J. 146, 162 (1964); see also N.J.S.A. 2C:44-7. We also require "that the factfinder apply correct legal principles in exercising its discretion." State v. Roth, 95 N.J. 334, 363 (1984). We will "modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
Here, defendant was convicted of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, and fourth-degree child abuse, N.J.S.A. 9:6-3. He faced a sentence of between five to ten years imprisonment and, after merging the child abuse and endangering convictions, defendant was sentenced within this range to nine years imprisonment with fifty-four months of parole ineligibility. The judge found that
Defendant is 35. He is currently unemployed, owing to his incarceration, although he has worked in the past. He reports no significant substance abuse issues. In addition to the victim of the case, the defendant has two other children. His criminal history is extensive and lengthy. He's been arrested 34 times, resulting in 26 convictions in New Jersey and Pennsylvania. Seven convictions are on the municipal level and 19 in the Court of Common Pleas in Pennsylvania. His previous convictions involve burglary, theft, drugs, obstruction, bad checks, and receiving stolen property. When released from state prison, he failed to report to supervision as required.
He has a domestic violence record with final restraining order issued in favor of the mother of the child victim in this case.
The judge declined to find aggravating factor two, N.J.S.A. 2C:44-1a(2), because the judge wanted to avoid double counting for the victim's age and vulnerability. However, the judge did find aggravating factor three, N.J.S.A. 2C:44-1a(3), a risk that defendant will commit another offense, concluding that defendant spent most of his adult life committing offenses. Given that this was defendant's most serious conviction, the judge found defendant's "criminal activity is escalating rapidly and dangerously." The court also found aggravating factor six, N.J.S.A. 2C:44-1a(6), a prior record which is extensive. Lastly, the court found aggravating factor nine, N.J.S.A. 2C:44-1a(9), the need to deter defendant from committing future acts of child endangerment. The court declined to find any mitigating factors.
We find no error in the court's failure to apply mitigating factors. Defendant has an extensive criminal history. We are satisfied that the trial court properly found three aggravating factors and no mitigating factors and therefore appropriately sentenced defendant to nine years imprisonment.
We find defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION