STATE OF NEW JERSEY v. A.M., Defendant-Appellant. (2011)

Tried to a jury, defendant A.M. was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts two and three);  two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts four and five);  and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six).   The jury acquitted defendant of a third second-degree sexual assault charge (count one).   He appeals and we affirm.

On June 26, 2009, defendant was sentenced to fifteen years imprisonment on count two, a first-degree aggravated sexual assault, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).   The court imposed a concurrent fifteen-year sentence subject to NERA on count three, also a first-degree aggravated sexual assault, and a consecutive seven-year sentence was imposed on count six, the second-degree child endangering.   The second-degree sexual contact counts were merged into count two.   Thus, defendant's aggregate sentence was twenty-two years.   Appropriate fines and penalties were imposed.   At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7).

The incidents occurred between 2000 and 2002 when defendant's granddaughter J.M., the victim of the assaults, was five, six, and seven years old.   At trial, she testified the first incident occurred in her grandfather's trailer when she was five.   He exposed his penis and told her to touch it and move it “back and forth.”   The victim described touching it with her thumb and “pointer finger,” and stated defendant showed her with his hand the movement he wanted her to copy.   J.M. stopped “[b]ecause it was gross and I didn't want to do it.”   She said nothing about the incident because she did not “know it was wrong” and defendant asked her not to tell anyone.

When J.M. was six years old, while alone with defendant in his recreational vehicle, defendant placed his hands inside and outside her vagina, and put his fingers inside her vagina.   He asked her if it hurt.   Again, the victim said nothing to anyone because she did not know defendant's conduct was wrong.

On one occasion when defendant was babysitting seven-year-old J.M., she encountered him masturbating and looking at pornographic magazines.   Defendant asked J.M. to “lick” his penis, which she refused.   By that point, J.M. knew the behavior was “gross and wrong,” although she did not fully understand it.   J.M. told her mother about the last incident shortly after it occurred, but because she did not want her grandfather to go to jail, nothing was done.

Approximately three years later, while watching a movie depicting the sexual abuse of a child, J.M. disclosed the two other incidents to her mother.   In early 2007, she made disclosures to a counselor and the matter was reported to the authorities.   Ultimately, J.M. agreed to cooperate with defendant's prosecution.   She was fifteen years old when she testified at trial.

During the course of a consensual taped intercept, defendant said he masturbated in front of his granddaughter, had her touch his penis, and put his hands and mouth on her vagina.   Thereafter, when interviewed by police, defendant waived his Miranda ¹ rights and provided a voluntary recorded statement.   He admitted that J.M. interrupted him while he was masturbating and that “one thing led to another and she wanted to touch me and I was halfheartedly pulling away․”  Defendant also told police he put his mouth on J.M.'s vagina and touched her clitoris, and attempted to justify some of this conduct as merely his efforts at “showing her” about sexuality.   While being interviewed, defendant said he was sorry the incidents had occurred and knew he “did her wrong.”   He also mentioned how much he “love[d] little girls,” because they were so “damn pretty.”

Prior to trial, defendant obtained a snapshot of J.M.'s MySpace page in which she wrote “i am the best liar you will ever meet. but i just hate lieingg. + i hate peoplee who do.”   The trial judge denied defendant's motion to introduce the printout as evidence in the trial, or to cross-examine J.M. about the statement, because it was being offered to prove a character trait, namely truthfulness, and constituted a “specific act.”   Since specific instances of conduct not the subject of criminal convictions are inadmissible as proof of credibility, the judge barred use of the material.

At trial, defendant denied ever having touched J.M. inappropriately.   When confronted with his prior recorded statements, defendant insisted he did not intend anything improper by his conduct and said he was describing nothing more than innocent game-playing with his granddaughter.

On appeal, defendant raises the following points:

I.  THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER BY PRECLUDING HIM FROM CROSS-EXAMINING J.M. WITH HER PRIOR STATEMENT THAT SHE IS THE “BEST LIAR YOU'VE EVER SEEN.” (raised below)

II. [C.V.]'S TESTIMONY REGARDING HEARSAY STATEMENTS OF J.M. EXCEEDED THE BOUNDS OF PERMISSIBLE “FRESH COMPLAINT” TESTIMONY. (not raised below)

A.  The trial court erred by failing to limit the level of detail contained in [C.V.]'s testimony.

B. The State committed prosecutorial misconduct in summation by arguing that the hearsay statements should enhance J.M.'s credibility.

III. COUNT THREE OF THE INDICTMENT SHOULD HAVE BEEN DISMISSED AT THE CLOSE OF THE STATE'S CASE, BECAUSE THE STATE PRESENTED NO EVIDENCE THAT DEFENDANT PERFORMED ORAL SEX ON J.M. (motion for acquittal raised below)

IV.  THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO CHARGE THE JURY WITH THIRD DEGREE ENDANGERING THE WELFARE OF A CHILD, AS A LESSER INCLUDED OFFENSE TO SECOND DEGREE ENDANGERING THE WELFARE OF A CHILD

V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE

A.  The trial court did not state adequate reasons for imposing a consecutive sentence for Endangering the Welfare of a Child

B. The aggregate sentence should shock the judicial conscience

I.

Defendant contends that the trial court's refusal to permit him to cross-examine J.M. about her MySpace page deprived him of a fair trial.   He asserts a Sixth Amendment right to confront J.M. about her statement and argues the material was admissible, pursuant to N.J.R.E. 608, as J.M.'s own opinion about her truthfulness and veracity.   Defendant did not raise this specific theory as a basis for admission to the trial court.   He instead urged admission of the MySpace page on the ground that it was a prior inconsistent statement, inconsistent with J.M.'s testimony that her sexual abuse allegations were true.

Unpersuaded, the court barred use of the MySpace page as it was a specific instance of conduct, not a criminal conviction, bearing on truthfulness.   See N.J.R.E. 404.   In doing so, the court assumed for purposes of discussion “that the foundational requirements of reliability” could be met.   We do not make that assumption.   As defendant's counsel candidly admitted, the defense did not have the forensic capabilities to confirm the page being proffered to the court was “the way the page looked on June 13th of 2008.”   In addition to that difficulty, should J.M. have denied authorship, defendant had no means to prove she created the page.   This lack of forensic expert testimony posed at least significant, if not insurmountable, bars to the admission of the proffered material regardless of any hearsay issues.

In any event, trial courts are granted substantial discretion as to evidentiary rulings.  State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L. Ed.2d 306.   We do not see any clear abuse of discretion in this instance and are therefore disinclined to disturb it.   See Dinter v. Sears, Roebuck & Co., 252 N.J.Super. 84, 92 (App.Div.1991).

J.M.'s credibility was thoroughly attacked on cross-examination.   For example, she could not recall some details regarding the sexual assaults.   There were minor inconsistencies between her trial testimony and prior recorded statements.   And J.M. continued to spend time with her grandfather even after these events allegedly occurred.   The victim admitted to being “close with him” despite the claimed abuse.   It was years before she made any disclosures.   It is clear defendant exercised his constitutional right of confrontation during cross-examination, and, despite being unable to impeach J.M. with the MySpace page, did so effectively under difficult circumstances.

Furthermore, due to the convoluted phrasing of the language from the MySpace page, the potential probative value was minimal.   Credibility is an issue in every case, but defendant's own admissions reduced the potential benefit of cross-examination about these unclear statements.   Given the totality of the circumstances, the judge's exercise of discretion was therefore reasonable.

II.

a.

Defendant also contends C.V., J.M.'s mother, provided prejudicial details while testifying about J.M.'s “fresh complaint” as to the incident which occurred when she was seven.   See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2010).   It is undisputed C.V.'s testimony was more detailed than permitted under the fresh complaint rule and, in fact, provided the jury with a detail about the sexual assault the victim herself did not give.   Defendant argues that, having heard this more detailed account, the jury was biased against him.   The court administered a limiting instruction regarding the use of fresh complaint evidence, both immediately after C.V.'s testimony and at the close of the State's case.

The fresh complaint rule allows the State to introduce the out-of-court revelation by the victim of a sexual assault to a person to whom the victim “would ordinarily turn to for support” when the statement is “made within a reasonable time after the alleged assault.”  State v. Hill, 121 N.J. 150, 163 (1990).   It must have been spontaneous and voluntary.  Ibid.

Defendant did not object to the admission of C.V.'s statement at trial.   Thus, we review this claim pursuant to the plain error standard.   See R. 2:10-2;  see also State v. Macon, 57 N.J. 325, 336 (1971).   The possible error must be “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.”  Macon, supra,, 57 N.J. at 336.

Even where the jury is presented with an overly detailed fresh complaint statement, the error is harmless if followed by a limiting instruction.   See e.g., State v. Bethune, 121 N.J. 137, 146-49 (1990) (finding that the admission of overly detailed fresh complaint evidence in a sexual assault case was harmless error);  State v. Scherzer, 301 N.J.Super. 363, 420-21 (1997) (holding that the detailed fresh complaint testimony was improper but harmless).   In this case, immediately after C.V.'s testimony, the judge issued a curative instruction.   Because the fresh complaint testimony was followed by a limiting instruction, the State's introduction of the testimony was not prejudicial.   If error, it was harmless.

b.

Defendant also argues the prosecutor's reliance upon C.V.'s fresh complaint testimony in her closing to bolster J.M.'s credibility was misconduct which warrants reversal.   In her closing, the prosecutor reiterated the details provided by C.V. which were not testified to by the victim herself.

To determine whether those references warrant reversal, we must assess whether the alleged misconduct “was so egregious that it deprived the defendant of a fair trial.”  State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).   We consider “the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.”  State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed.2d 89 (2001).

The prosecutor's repetition of the fresh complaint testimony during summation did not create, as defendant claims, “doubl[e] the prejudice.”   Any error caused by C.V.'s overly detailed account was cured through the judge's limiting instruction, issued immediately following her testimony and in the court's closing charge.   Again, C.V.'s testimony and the prosecutor's passing reference to it did not cause defendant to be convicted of an offense higher in degree, or even of an offense he did not describe in his own words.   Therefore, defendant's argument that the repetition of C.V.'s details in summation constituted prosecutorial misconduct is without merit.

III.

Defendant also asserts the trial judge should have dismissed count three, first-degree aggravated sexual assault, because the State did not present evidence that defendant performed oral sex on J.M. When a defendant moves for dismissal of a charge at the close of the State's case, the motion will be denied if “viewing the State's evidence in its entirety, be that evidence direct or circumstantial,” and giving the State the benefit of all reasonable inferences, “a reasonable jury could find guilt of the charge beyond a reasonable doubt.”  State v. Reyes, 50 N.J. 454, 458-59 (1967).   We apply that same standard on appellate review.  State v. Moffa, 42 N.J. 258, 263 (1964).   It is defendant's burden to establish there was insufficient evidence for a reasonable trier of fact to find guilt.  State v. Trotman, 366 N.J.Super. 226, 235 (App.Div.2004).

Defendant was recorded twice, once during the consensual intercept and once during his statement to police, acknowledging that he put his “mouth all around there” - referring to J.M.'s vagina.   In addition, when the investigating officer explicitly asked whether he put his mouth on J.M.'s vagina he stated “all around the area yes.”   When the officer asked again, defendant stated “I probably did because I was doing it all around that area.”   Defendant insisted that it “was the only time.”   Given defendant's own words, there were ample facts from which a jury could find defendant guilty of first-degree sexual assault.   The record does not support this contention of error.

IV.

In a fashion equally unsupported by the record, defendant asserts the trial court should have instructed the jury sua sponte that if it found defendant did not have “a legal duty for the care of a child” pursuant to N.J.S.A. 2C:24-4(a), it could find defendant guilty of the lesser offense of third-degree endangering the welfare of a child.   This claim must also be considered pursuant to the plain error doctrine.

A trial court will instruct the jury as to lesser-included offenses only when there is a rational basis in the record to do so.  State v. Denofa, 187 N.J. 24, 41-42 (2006) (citing State v. Garron, 177 N.J. 147, 180 (2003)).   Defendant argues that because he was an infrequent babysitter, he did not have a duty within the meaning of N.J.S.A. 2C:24-4(a).   Defendant, however, was J.M.'s grandfather, and he himself said he babysat for the child “a number of times,” and that such times “always happened.”   Given this evidence, no lesser-included charge was warranted because it was not supported by the record.

V.

Defendant contends the court erred by its failure to explain the reason for imposing a consecutive sentence for endangering the welfare of a child.   We note initially that the court did not impose separate sentences on the two aggravated sexual assault convictions, which occurred on separate dates.   Although the court did not expound at length on the reasons for imposing a consecutive sentence, we review sentencing decisions employing a very deferential standard.   We only modify a sentence when a court is “ ‘clearly mistaken.’ ”  State v. Kromphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

In this case, the child endangering was not predominantly independent of defendant's conduct in sexually assaulting his granddaughter.   Nonetheless, the consecutive sentences were imposed on two separate crimes, defined by two separate statutes.   Although they involved the same behavior, the statutory elements are quite distinct.   One was the crime of the sexual conduct itself, the other the enhanced, separate consequence of engaging in such conduct when a duty of care exists.   Accordingly, nothing here warrants a resentence, as nothing about the consecutive sentences establishes that the judge was “clearly mistaken.”

Defendant also contends that mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), should have been found because of his age when sentenced, seventy-nine.   But the Code mandates a custodial sentence where a defendant is convicted of a first-degree crime.   See N.J.S.A. 2C:43-2(a) and N.J.S.A. 2C:43-6(a)(1).   The presumption of imprisonment attendant to convictions for first-degree offenses is overcome only when a court finds incarceration would be a serious injustice, and an injustice which overrides the need to deter defendant and others.  State v. Rivera, 124 N.J. 122, 124-26 (1991);  State v. Jabbour, 118 N.J. 1, 5-8 (1990).   Crimes involving willful conduct, as opposed to the commission of crimes of an accidental nature, give meaning and substance to aggravating factor nine, the need for deterrence.   See also Jarbath, supra, 114 N.J. at 406-08 (finding that defendant committed a crime not involving purposeful conduct, had little comprehension of the offense, likely could not modify her behavior, and would, because of her limited functioning, suffer from incarceration to a greater extent than would other inmates).   Furthermore, no case has been cited supporting the proposition that mitigating factor eleven must be found when a defendant is elderly.

We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record.  State v. Bieniek, 200 N.J. 601, 607-09 (2010).   If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld.  Ibid. In this case, the court's finding of aggravating factors three and nine were warranted.   Defendant denied the commission of these offenses, thereby establishing a risk of reoffense and the need to deter.   See State v. Rivers, 252 N.J.Super. 142, 153-54 (App.Div.1991).   The need to deter was particularly meaningful given the nature of the offenses.   Only one mitigating factor was present, that being defendant's lack of a prior criminal history.   The sentence therefore complied with the Code, was supported by the record, and does not shock our conscience.

Affirmed.

FOOTNOTES

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM