PER CURIAM.
Tried by a jury, defendant J.L.H. was convicted of second-degree sexual assault,
The principal issue defendant raises on appeal is whether certain testimony by the victim and her mother violated the fresh-complaint rules, an error defendant now claims was compounded by the trial judge's failure to instruct the jury regarding fresh-complaint evidence. Defendant also alleges the prosecutor made improper and prejudicial statements during his closing argument. Lastly, defendant asserts the court's failure to consider mitigating factor eleven,
At trial, the State presented three witnesses: Monmouth County Prosecutor's Office Detective Andrea Tozzi; the victim, P.S.; and the victim's mother, M.W. The first to testify, M.W. stated that she began to date defendant in June or July 2010. The relationship progressed to the point where they began to discuss "possibly living together." M.W.'s household consisted of then thirteen-year-old P.S., and her eighteen-year-old son, who would occasionally stay in the apartment.
M.W. said defendant told her that he wanted to
As a result, towards the end of February or early March 2011, defendant took P.S. bowling and to a meal at Red Lobster.
M.W. further testified that one Friday night in early May 2011, she, defendant, and P.S. were watching a movie in the living room when a friend called her cell phone. Defendant asked her to take the conversation into the bedroom so as not to interrupt the movie. When she returned, defendant "ran to me, you know, very suspicious, just really nervous." He seemed "in a panic," and almost crashed into her. Initially, defendant claimed he was flustered because he had been looking at pictures of women on his cell phone, and then confessed that he had been on the phone with another woman.
Because P.S. had a sleepover the following day, a Saturday, M.W. did not speak to her about the incident until Sunday afternoon. When M.W. picked P.S. up from the sleepover, P.S. disclosed that defendant had "sexually abused her." That Monday, M.W. went to work, but asked for a half day so she could take P.S. to the police. In the morning she received a call from the school, as P.S. "had already reported it to someone."
M.W. also testified regarding her police-recorded phone call to defendant confronting him about her daughter's allegations. The tape of the hour-long phone intercept was played to the jury. Detective Tozzi was the witness through whom the State introduced the tape.
M.W. was extensively cross-examined regarding her continued contact with defendant, the fact that she canceled a check repaying money he had loaned her, and her knowledge about his relationships with other women while the two were dating. Additionally, defense counsel asked M.W. several questions about the fact that P.S. did not disclose the alleged conduct to her family or friends.
At the time of trial, P.S. was fifteen. On direct examination, she described five separate occasions during which defendant engaged in a variety of sexual behaviors including: fellatio, groping under and over clothing, kissing, digital penetration, exposing his genitals to her, and an attempt at intercourse, which ended when she said it hurt. P.S. commented that when her mother was around, defendant would act "like a daddy figure," but when her mother was absent, he would act "like I was his girlfriend. Like I was his lover or something."
P.S. told her mother about the incident only because her mother "kept asking." She said she did not specifically describe the sexual assaults because she "felt embarrassed." P.S. also told her mother she did not want to report the matter to police because she was "scared." The following day, however, she disclosed the assault to a school counselor. It was not until the second interview with the police, conducted by a female detective, that she explicitly detailed defendant's conduct.
Like with M.W., on cross-examination defense counsel extensively probed P.S.'s failure to tell anyone, including her father, brother, and friends. She was also examined at some length about the omissions in her first statement to the police as compared with her second statement.
When confronted by M.W. during the recorded phone conversation, defendant initially responded that the child "did come on to me." He said that P.S. told him she wanted to have sexual relations with him, and that she had previously had relations with an eighteen-year-old boy. Defendant also claimed that P.S. asked to see his penis and touched it, and that she put his hand on her breast. Later in the conversation, defendant denied any "physical contact" or "French kissing," but said that P.S. had given him a "passionate kiss" when they went bowling.
Although he denied P.S.'s version of the encounter, defendant repeated four times during the phone call that he was "not saying that [P.S. is] a liar." He described P.S. as a "promiscuous young lady" who abused drugs and alcohol:
When M.W. said that defendant should have told her that P.S. put his hand on her breast, he responded: "No, but you know what? Now . . . in hindsight, I shouldn't never ever took her out, now everybody should go back to hindsight. . . ." He asserted that P.S. thought of him as a "boyfriend," and that she had told him that her dream was for him to take her to a hotel room to have intercourse.
Defendant repeatedly asked about the future of his and M.W.'s relationship. At times defendant's statements were confusing. The conversation ended as follows:
At the charge conference, defense counsel requested the "false in one — false in all" instruction.
In his closing statement, defense counsel vigorously attacked the victim's and her mother's credibility. He pointed out that it was "strange" that P.S. made no disclosures to her friends and family after the first alleged event. Counsel reminded the jury that the victim's mother had previously pled guilty to second-degree child endangering, and went on to describe the jury charge regarding the conviction's impact on the jury's assessment of her credibility.
Defense counsel also pointed out to the jury that M.W. did not immediately contact the police once informed, but in fact, went to work the following day. He theorized that she was nothing more than a woman scorned, and that reasonable doubt in the case arose from the State's witnesses' lack of credibility. As counsel put it, "these people are lying all over the board." He attacked P.S.'s credibility, repeating that she told no one about the assaults until pressed by her mother. Counsel also reminded the jury about the discrepancies between P.S.'s first and second statements to the police.
The prosecutor began his summation by acknowledging the defense's theory that the victim and her mother were liars. He observed that defendant did not characterize P.S. as a liar at any time during the hour-long phone conversation. The prosecutor also said:
After reviewing the evidence, the prosecutor also told the jury:
At the sentencing hearing, the prosecutor noted that defendant had been previously convicted of second-degree sexual assault. As a result of that conviction, defendant was on community supervision for life and had violated his conditions on "multiple" occasions. Although the Adult Diagnostic and Treatment Center evaluation, conducted after this conviction pursuant to
When exercising his right of allocution, defendant said he was innocent and thanked the mother of one of his children for taking care of the child in his absence. Prior to sentencing defendant, the trial judge noted his four prior indictable convictions, including three for violating community supervision for life, and prior domestic violence restraining orders. None of his three children resided with him.
The judge found aggravating factor three, the risk defendant will reoffend,
The judge then imposed a ten-year sentence on defendant subject to NERA.
On appeal, defendant raises the following points for our consideration:
Defendant's first point on appeal is that the trial court erred in its admission of M.W.'s testimony that P.S. told her that defendant had "sexually abused" her, and P.S.'s testimony that she disclosed the events to her mother and to her school counselor, who immediately contacted police. The testimony was brief because neither witness repeated what was said.
Fresh-complaint evidence consists of statements regarding a sexual assault made to a trusted confidant, within a reasonable time after the alleged incident, which are "spontaneous and voluntary."
The model jury charge on fresh-complaint evidence reads in relevant part:
As the model charge explains, the fresh-complaint rule allows the State to admit hearsay testimony, namely, the victim's out-of-court statements about a sexual assault made soon after the assault occurs.
But the "failure to give a proper limiting instruction on the use of fresh[-]complaint testimony [is] not plain error."
In this case, the testimony that P.S. told her mother and school counselor about the assault does not neatly fit the definition of fresh-complaint evidence. P.S.'s statement to her mother was the product of M.W. pressing her daughter because of her concern about defendant's unusual reaction to her presence. The statement made to M.W. was not "spontaneous and voluntary."
Additionally, the State did not present the evidence as fresh-complaint testimony, i.e. to dispel the suggestion that because of the victim's silence the charged crimes did not occur. Instead the State proffered the testimony to explain how the matter came to the attention of the police. M.W.'s statements regarding what P.S. told her were not introduced to prove the truth of their content. The statements were elicited solely as part of the narrative describing how defendant came to be charged. The statements were minimal and not detailed.
The damning evidence the State relied upon was found in M.W.'s testimony about defendant's strange behavior on the Friday evening, in the phone call that the police recorded, and in P.S.'s testimony regarding the five assaults. Thus the omission of the fresh-complaint instruction was not prejudicial either. Neither the statements nor the failure to give the instruction were plain error leading to the conclusion that the jury was thereby led to a result it might not otherwise have reached.
Furthermore, during the cross-examinations of M.W. and P.S. and during closing statements, defense counsel repeatedly stressed P.S.'s failure to disclose the assault to anyone else, such as her father, brother, friends, or other confidantes, as establishing her lack of credibility. Defense counsel built its defense theory in part on P.S.'s silence, thereby taking advantage of the notion that P.S.'s "claims of having been sexually assaulted are false because of [her] [] failure to have confided in anyone about the sexual offense," until pressed by her mother.
In response, in his closing, the prosecutor offered reasons for P.S.'s silence that the jury could consider, such as fear or embarrassment, but did not mention her disclosure to her mother or the counselor as a countervailing consideration. When he mentioned P.S.'s disclosure to her mother, it was in the context of M.W. having sensed something was amiss when she walked back into the living room and, as a result, asked her daughter about it. In other words, defense counsel's strategy of attacking the credibility of the victim and her mother relied upon the absence of a "fresh complaint," while to refute the argument, the State only offered possible reasons for her silence. The State did not argue that P.S.'s statements to her mother and the counselor meant anything at all.
Defendant contends that he was deprived of a fair trial due to the prosecutor's inappropriate comments. A "[d]efendant's allegation of prosecutorial misconduct requires that [the court] determine whether the trial court violated his right to a fair trial."
If a defendant does not make a timely objection, a prosecutor's "remarks usually will not be deemed prejudicial. . . . [and] [a] [d]efendant must show plain error to be entitled to a new trial."
Defendant identifies several statements he asserts warrant reversal. He claims, for example, it was improper for the prosecutor to have said that P.S. was "confused about what to do, and scared." This statement just reiterated P.S.'s own words. The prosecutor actually repeated P.S.'s testimony on cross-examination regarding the reasons she did not tell anyone about the assault — that she was embarrassed and afraid, that someone might get hurt or in trouble.
The prosecutor also mentioned the word "denial," and observed that it was not surprising that after P.S. recovered from making her first statement to the police she would have given more details in the second statement. He said that she was traumatized by the events, perhaps an improper expression of his opinion but, given that sexual conduct towards children is a crime, not prejudicial. Hence we do not agree with defendant that these comments were "nothing more than a cunning attempt to inject [the prosecutor's] own personal opinion into the case." They were comments on the evidence, albeit strained at times.
Defendant also argues that the prosecutor improperly attempted to introduce the notion of Child Sexual Abuse Accommodation Syndrome (CSAAS) into the case to explain P.S.'s reactions to the jury. We think that conclusion is speculation not supported by the record as it assumes that jurors would be familiar with the theory. The prosecutor's comments related to the reaction any person would have had to a traumatic event.
Defendant objects to the State's reference to life "tragedies" and Hurricane Sandy as impermissible efforts to appeal to the jury's emotions. The comments were not, however, of the type of inflammatory and highly emotional appeals "which have the capacity to de[t]er the jury from a fair consideration of the evidence of guilt."
Prosecutors are obliged to "not make inaccurate legal or factual assertions during a trial."
Defendant also contends that the prosecutor "impermissibly denigrated defense counsel" when he said, in discussing the cross-examination of the victim, that he was glad he was seated at counsel table and not in the witness box. We do not interpret this as denigrating defense counsel. Defense counsel vigorously attacked the State's witnesses on cross-examination, attempting to establish that they were untruthful. The prosecutor was merely commending him for that effort. This argument also lacks merit.
Finally, defendant argues that the cumulative effect of the prosecutorial misconduct warrants reversal. None of the comments standing alone were prejudicial, and given their nature, we do not agree that in combination they warrant reversal.
Defendant urges this court to remand for resentencing because the trial judge, while weighing the applicable aggravating factors, did not consider defendant's three children and find mitigating factor eleven. The record does not support the claim that in this defendant's situation, the effect on his family would be any different than that on the children of every other person who is imprisoned. According to the presentence report, defendant lived with none of his children, a fact reiterated by the trial judge, and which elicited no correction.
The victim in this case testified about five incidents occurring on five different dates during which either defendant engaged in sexual contact with penetration or had criminal sexual contact, and thus endangered her welfare. P.S. testified that on the first occasion, defendant "grabbed" her neck, pushed her down onto his body, and then attempted to forcibly have intercourse, stopping only when the victim told him that "it hurt" after attempts in two positions. The indictment alleged second-degree sexual assault in February 2011 by force or coercion; second-degree sexual assault on numerous dates between February and April 29, 2011, when the victim was thirteen and defendant was at least four years older; fourth-degree criminal sexual contact; and third-degree endangering the welfare of a child by engaging in sexual conduct within that same timeframe. The verdict sheet the jury used to report their verdict tracked the indictment.
The purpose of merger is to avoid double punishment for a single offense.
Affirmed as to the convictions, remanded for resentence.