STATE OF NEW JERSEY v. FRANK CAPO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6310-04T16310-04T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FRANK CAPO,

Defendant-Respondent.

___________________________________

 

Argued: November 1, 2005 - Decided:

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, 04-03-0198-I.

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for appellant (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).

Robert J. Galluccio argued the cause for respondent (Miles Feinstein, attorney; Mr. Feinstein and John Vincent Saykanic, on the brief).

PER CURIAM

Following our denial of the State's motion for leave to appeal certain pre-trial evidentiary rulings made by the trial court, the Supreme Court, on the State's further application, entered an order summarily remanding the matter for our consideration of the merits. Having digested and analyzed the written and oral arguments advanced by the parties in the light of prevailing legal standards, we now affirm in part and reverse in part.

Defendant is charged in two counts with aggravated sexual assault (first degree) and sexual assault (second degree). The statute, N.J.S.A. 2C:14-2, prohibits "an act of sexual penetration with another person . . . [where t]he actor uses physical force or coercion[.]" A first degree crime occurs, inter alia, when "severe personal injury is sustained by the victim[.]" N.J.S.A. 2C:14-2a(6). A second degree crime occurs, inter alia, when "the victim does not sustain severe personal injury." N.J.S.A. 2C:14-2c(1). The first and second counts of the instant indictment charge the latter elements respectively.

The indictment was filed on March 1, 2004. It alleges crimes committed between May 1991 and November 1997 upon the victim, K.R., defendant's stepdaughter, when she was between twenty-one and twenty-eight years of age. Defendant contends that the victim consented to the sexual conduct. The State proposes to prove the victim's inability to consent by reason of a history of abuse and control visited upon her by defendant throughout most of her childhood.

K.R. and her sister, W.O., began residing with defendant when he moved into their mother's apartment in 1974. At that time, K.R. was four-and-one-half years old and W.O. was eight. The State alleges that defendant began rather early in the relationship to engage in sexually abusive and controlling behavior with respect to the children, and acts of domestic violence against their mother, S.L., which the children either witnessed or of which they were circumstantially aware. Prosecution of defendant for these acts against K.R., W.O. and S.L. is barred by the statute of limitations. Prosecution for acts of sexual assault may, however, be commenced at any time. See N.J.S.A. 2C:1-6.

The State, in its brief, contends:

The instant matter involves the State proving defendant's state of mind and that the victim did not freely consent to defendant's sexual acts upon her due to the two-decades-long pattern of sexual, physical and mental abuse perpetrated upon her by defendant which made the victim believe that a withholding of consent was fruitless.

In an early ruling, after a hearing on the qualifications of an expert witness proffered by the State, the trial court held the witness to be qualified to testify at trial concerning the victim's "ability to consent to sexual activity with an adult individual who allegedly abused her as a child." The judge characterized the issue for expert opinion as follows:

It's somebody who, as a minor, was sexually abused and now is an adult and they have certain experiences and they feel a certain way as an adult as a result of things that happened to them as a minor . . . who's been sexually abused.

Three weeks later, an evidentiary hearing was held on the admissibility of the factual background and the expert's testimony regarding the impact of defendant's conduct on the victim as a child, in the face of a defense that she had consented to the acts committed against her as an adult. The trial court framed the purpose of the inquiry as being whether the State was able to establish its theory that the victim

did not have the capacity to consent because of the conditioning . . . that is alleged to have occurred while she was a minor by way of . . . what's alleged to be persistent sexual abuse during her childhood and teen years. And, . . . that . . . defendant knew about his and knew that she didn't have the ability to consent. And, nonetheless, had sexual relations with her beyond the age of 18.

In a comprehensive written opinion articulating the court's rulings on the admissibility issues, the judge observed that he was required to rule, inter alia, whether the factual premises could come into the record via

The State's motion to introduce prior bad acts . . . grounded upon two legal theories:

A. Res Gestae. Defendant's acts of sexual, physical and mental abuse prior to 1990 are part of the res gestae of the current aggravated sexual assault and sexual assault charges.

B. N.J.R.E. 404(b). Defendant's acts of sexual, physical and mental abuse prior to 1990 are admissible pursuant to N.J.R.E. 404(b) as other crimes/acts of misconduct evidence.

Under either approach, the trial court held, invoking an element of the four-part test adopted in State v. Colfield, 127 N.J. 328, 338 (1992), that it was necessary to determine whether the prior acts had been proved by clear and convincing evidence. Based upon "an extensive evidentiary hearing" in which S.L., K.R., and W.O. had testified, the court, applying that standard of proof, found that, for admissibility purposes, the acts had occurred. The court also determined "that the prior bad acts may not be excluded based on irrelevancy" or "remoteness" grounds. See ibid.

The court then turned to an application of the probative value/prejudicial effect balance that governs whether relevant, otherwise admissible evidence should be excluded. See N.J.R.E. 403; Colfield, supra, 127 N.J. at 338. In this connection, the judge considered thirty-seven discrete incidents, which he numbered consecutively. He excluded evidence of thirty-one incidents and ruled that evidence relating to six would be admitted. Only the thirty-one exclusionary rulings are before us in this appeal, because defendant has not moved for leave to appeal from the other six rulings. All of the rulings are part of the same record, however, and all must be considered for the sake of coherence and consistency.

The incidents fall into five manifestly distinct conceptual categories. First, are those encompassing defendant's conduct directed toward the victim, K.R. Second, are those in which defendant's acts were directed at either K.R.'s sister or her mother, but that K.R. actually saw or heard. Third, are those of defendant's acts directed against K.R.'s sister and mother that K.R. did not witness, but which were reported to her; and other indicia of defendant's conduct that did not involve K.R. in any direct way, but of which she learned. Fourth, involve attitudes and conclusions by K.R., her sister and her mother about defendant's conduct and its effect upon them. Fifth, is K.R.'s own conduct, the basis for which she attributes to defendant's treatment of her and his attitudes toward her.

Of the six incidents deemed admissible by the judge, three were in the first category numbers 14, 16 and 33 and three were in the second category numbers 1, 2 and 4.

The judge deemed the three first-category incidents to be admissible because they were highly probative of the basic allegations embodied in "the acts charged" as "direct evidence of defendant's desire to control K.R. [and of his] desire to show K.R. that he sexually controlled her" (numbers 14 and 33); or of "an intentional act by the defendant to exercise control over K.R. and make her fear him" (number 16). As to incident 16, the judge also characterized its probative value as bearing upon defendant's "aware[ness] of the effect that his actions had on K.R. If the defendant intentionally caused K.R. to fear him, then a jury may take this into account when assessing whether his belief that K.R. was consenting to his sexual acts was unreasonable." The judge evaluated the probative value of the evidence to outweigh its prejudicial effect.

With regard to the second-category incidents deemed admissible, the judge's reasoning was similar. In respect of incident 1, the judge noted that the violent act depicted was committed in 1975 against K.R.'s mother in K.R.'s presence when she was five years old. Although "[t]his incident standing alone would have little probative value[,] [c]oupled with similar prior acts, its probative value takes on meaning. It is within the province of the jury to infer from this act that it made K.R. fearful of the defendant." Hence, because "the probative value of this act outweighs the prejudicial effect . . . it is admissible."

Incident 2 also involved "a physical and verbal confrontation" between defendant and K.R.'s mother in 1975 which K.R. overheard. The judge ruled that "[t]his incident is probative of the defendant's violent and controlling behavior and K.R.'s awareness of this." It is probative of "defendant['s] . . . aware[ness] that K.R. would hear this argument thus sending the message that there were serious consequences for upsetting him and for not obeying him." The court evaluated "the probative value of this act to outweigh[] the prejudicial effect and[, therefore, to be] admissible."

Incident 4 also involved "a heated argument" in 1975 between defendant and K.R.'s mother in K.R.'s presence. The court found there to be greater probative value than prejudicial effect in "[t]his continuous violent behavior by the defendant [that] is probative on the issue of the defendant's conditioning of K.R. to fear him." Accordingly, evidence of the incident was deemed admissible.

In sum, the judge reasoned that evidence of each of the aforementioned six incidents is admissible because the evidence proffered has great probative value regarding the issues before the court and is not outweighed by any prejudice defendant might suffer. Of course, the trial court will have a commensurate duty to minimize or eliminate undue prejudice by well-framed instructions to the jury.

Of the remaining thirty-one rulings of inadmissibility which are the focus of this appeal the majority, seventeen, were in the first category, as acts directly involving defendant and the victim, K.R. We will dispose of the remaining fourteen before considering the rulings on the seventeen first-category incidents.

Two of those, "incidents" 34 and 36, were in the fifth category, as evidence of the victim's own conduct, the basis for which she attributes to defendant's treatment of her and his attitudes toward her. Both bear upon K.R.'s feelings rather than any direct conduct on the part of defendant. We agree with the judge that these "incidents" had much less probative value than prejudicial effect regarding defendant's conduct in instilling fear in the victim or conditioning her sexually. Because of the extreme conduct of the victim recounted therein, they had a distinct capacity, in the context of the remaining proofs, to inflame the jury against defendant. They were, therefore, properly excluded as having attenuated pertinence to "[t]he issue at hand," i.e. the "reasonable[ness of defendant's] . . . belief that K.R. consented to the sex acts between 1991 and 1997."

Three of the incidents, numbers 3, 8 and 9, were in the fourth category, describing K.R.'s attitudes or those of her mother about defendant's conduct and its effect upon them. Here, too, we are in substantial agreement with the trial court's reasons for excluding the testimony after applying the probative value/prejudicial effect evaluation. As to incidents 8 and 9, the judge found, respectively, that the evidence "is not . . . about a prior act but an explanation about K.R.'s delayed disclosure[,]" and that "defendant's strict enforcement of traditional rules . . . is not sufficiently probative of the defendant's conditioning of K.R. to fear him to[] higher levels such that she would unreasonably consent to sex with him." As to incident 3, K.R.'s attitudes about holes in the walls in the family's apartment made by defendant were not sufficiently probative of defendant's controlling conduct vis- -vis K.R. herself.

Four of the incidents, numbers 5, 6, 7 and 27, were in the third category, as evidence of conduct by defendant directed against the victim's sister and mother that the victim, herself, did not witness, but which were reported to her. Three other incidents, numbers 15, 17 and 18 could reasonably be viewed as being in either the third or fourth categories.

Incidents 5, 6, 7, and 27 all bearing upon defendant's conduct toward the victim's sister and mother had profound capacity for inflaming the jury about defendant's allegedly violent propensities, with insufficient offsetting probative value regarding their reasonable effects upon the victim herself. Her own testimony and such indirect support as the opinions of the State's psychological expert furnished did not overcome the potential for prejudice.

The balancing evaluations called for by the probative-value/prejudicial-effect paradigm exist on a sliding scale. There is, almost always, some probative value and some prejudicial effect, calling for highly discretionary judgment calls by the judge evaluating each proffer separately. We are bound to accept a trial court judge's discretionary evaluations on evidence issues unless they reflect judgment exercises that are lacking in reasonable basis. See, e.g., State v. Erazo, 126 N.J. 112, 131 (1991). The trial court's evaluations of the third-category proffers in this matter bear no such earmarks. They were the result of serious, reflective weighing processes that bore no significant indicia of flawed judgment to justify a second-guessing approach on our part. The evaluative results as to incidents 15, 17 and 18 are, likewise, entitled to deference. Those incidents bear upon defendant's conduct toward K.R.'s sister, and not K.R. herself, and have minimal probative value regarding the focal issues in this matter.

Of the remaining incidents deemed inadmissible, nineteen in number fall primarily into the first category, as evidence of defendant's acts committed directly against the victim. Two of the incidents, numbers 13 and 31, are of the second category, in which defendant's alleged acts, although directed against her sister or her mother, were committed in the presence of the victim. Two of the incidents in the first category, numbers 22 and 23, also have some second- and third-category features, but they clearly involve first-category allegations.

Recognizing, as we have, the need to defer to trial court discretionary determinations on evidentiary issues unless manifestly incorrect, we are at a loss to understand how any of the first- and second-category proffers could not be deemed highly probative of the victim's and defendant's states of mind, in the context of the anticipated consent defense. The State contends that the victim was incapable of reasonably based consent as a result of the conditioning that occurred because of defendant's sexual, self-gratifying, and over-controlling conduct regarding her, and that defendant, reasonably, should have been aware of her state of mind.

Given the circumstances, it is not appropriate, in the probative-value/prejudicial-effect evaluative balancing process, to accord as much weight as the trial court did here to the likelihood than an alleged act "would so offend the sensibilities of the average juror that it would be impossible to eliminate the undue prejudice by way of a limiting instruction." This rationale was employed by the trial court as the basis for at least six of the first-category inadmissibility rulings. The flaw in this approach is that it has the capacity to insulate a defendant from the jury's probing evaluation of his conduct if the acts he is alleged to have committed are especially heinous. Obviously, the less odious the conduct, the less the prejudice that will ensue from its presentation to the jury. But, simple logic does not allow the approach employed by the trial court. Cf. State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)(observing that "[t]he true test is the logical connection between the proffered evidence and a fact in issue"). The State is entitled to the jury's evaluation of even the most repellent conduct alleged to have been committed by defendant, as long as it bears a sufficient connection with real issues in the case. Cf. State v. Covell, 157 N.J. 554, 564-571 (1999). And, the trial court is bound to exert its best efforts to eliminate undue prejudice by directing the jury along proper lines of reflection and instructing it, with care, how to avoid improper considerations.

Another rationale repeatedly invoked by the trial court to explain its exclusionary rulings was that certain incidents of strictness on defendant's part alleged by the State to be over-controlling conduct could be interpreted as "'normal' disciplinary measures imposed by a parent." Given that a focal question before the jury was the extent to which, if any, the victim was deprived, by her relational history with defendant, of the ability to consent to defendant's allegedly predatory conduct after she reached adulthood, the judge's resolution of the issue intruded upon the jury's function. It is a question of ultimate fact for the jury to determine whether the disciplinary measures imposed by defendant were sufficiently "normal" as to require a determination that any attitude of forced compliance asserted by the victim must be viewed as either pretextual or unreasonable.

On the whole and in general, none of the childhood incidents alleged by the victim as explaining her inability to consent to sexual assaults upon her by defendant after she attained adulthood is beyond jury evaluation, as long as the two factors, i.e. the incidents and their effects on the victim, have a sufficiently direct telic relationship to satisfy the values embodied in the probative-value/prejudicial-effect balance. All incidents of allegedly direct conduct or exposure are subject to jury evaluation on credibility and reasonableness bases. As the trial judge himself ruled with respect to incidents 1 and 5, respectively, "[i]t is within the province of the jury to infer from this act that it made K.R. fearful of the defendant[;]" and "[t]he continuous violent behavior by the defendant is probative on the issue of defendant's conditioning of K.R. to fear him."

 
Accordingly, we affirm in part and reverse in part. The rulings excluding evidence of incidents 3, 5, 6, 7, 8, 9, 15, 17, 18, 27, 34, and 36 are affirmed. The rulings excluding evidence of incidents 10, 11, 12, 13, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 35 and 37 are reversed. The matter is remanded for further proceedings consistent with this opinion.

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A-6310-04T1

RECORD IMPOUNDED

December 6, 2005