STATE OF NEW JERSEY v. OLIVER JOHN SIMS, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1096-05T51096-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

OLIVER JOHN SIMS, JR.,

Defendant-Respondent.

________________________________

 

Argued: February 7, 2006 - Decided February 17, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, 2004-05-0223-I.

Christine Engiles, Assistant Prosecutor, argued the cause for appellant (Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Engiles, on the brief).

Thomas C. Pluciennik argued the cause for respondent.

PER CURIAM

We consider this matter on the State's appeal, on leave granted, from an interlocutory ruling. The trial court's order granted defendant's motion to preclude the State from offering certain evidence.

Defendant is charged with four counts of sexual assault (second degree) in violation of N.J.S.A. 2C:14-2c(4). That statute provides:

An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: . . . (4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.

Defendant is also charged with four counts of criminal sexual contact (fourth degree) in violation of N.J.S.A. 2C:14-3b, and four counts of third degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a.

In a written supplement to his order, Judge Pursel summarized the factual context as follows:

It is alleged that in December 2000, the defendant, who was twenty-five at the time, became romantically involved with the victim, R.H., who was only 15 at the time. The State alleges that the defendant and the victim continued to engage in sexual relations from December 2000 to August 2001. It is alleged that on August 13, 2001 the victim became aware that she was pregnant, and the pregnancy was terminated by abortion on October 13, 2001 at the Allentown Women's Center. The defense now moves to preclude the State from offering the victim's abortion medical records into evidence as part of the State's case.

The State has argued that the evidence should be admitted "[b]ecause the pregnancy is relevant to two material elements the State must prove," i.e., penetration and the age of the victim at the time of the act, "and because the abortion is the only method of proving the pregnancy[.]"

After outlining the proof requirements for the sexual assault charge, the judge went on to note:

It is not necessary for the State to prove or offer evidence that the defendant had sexual intercourse which resulted in the victim becoming pregnant. The only relevant issue before the fact-finder would be whether or not sexual penetration occurred between these two individuals. The fact that the victim may have become pregnant as a result of that intercourse, or that she chose to have an abortion to terminate that pregnancy is irrelevant to the fact in issue. The medical report by itself does not prove that this defendant had intercourse with the victim, but rather it only proves that the victim had intercourse with someone and became pregnant and had that pregnancy terminated. There is absolutely nothing in the medical reports that ties this defendant to the pregnancy that is being aborted. The mere fact that the victim claims that she only had sexual relations with the defendant during the time frame is an issue of credibility and a fact that must be decided by a jury. The fact that she became pregnant and had that pregnancy terminated bears no relevancy on the charges facing this defendant. The State can seek to prove sexual penetration a number of probative ways, but the introduction of this medical report would not be one of them because it is far too prejudicial.

The State concedes that it is unable to prove a genetic connection between defendant and the fetus. It asserts, however, that the medical records of the October 13, 2001 abortion contain findings that the fetus was thirteen-weeks developed and, therefore, provide evidence that the act that resulted in the pregnancy occurred before the victim's sixteenth birthday on August 23, 2001.

In ruling on the motion, Judge Pursel, held:

The Courts have been clear that certain evidence must be excluded if "it is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue[s of the case]." State v. Thompson, 59 N.J. 396, 421 (1971). There is no issue which is more hotly debated in the United States than the legality of abortion. Quite often this issue cannot be discussed by individuals in a civilized manner and therefore it should not be inserted into a case unless there is a legitimate connection to the crime for which the defendant is charged. This Court cannot find any connection between the victim's abortion records and the crimes that have been charged against this defendant. This Court cannot think of anything more prejudicial than this kind of evidence.

Therefore, this Court finds that the medical reports of the victim dealing with her pregnancy termination are not relevant and should not be introduced at trial.

At oral argument on appeal, among other positions taken, defendant urged that the fact of pregnancy does not necessarily establish penetration in the manner proscribed by statute. He offered to stipulate that the victim's pregnancy began when she was under the age of sixteen. The State agreed that that stipulation would render moot the issue on appeal. With the stipulation, both the pregnancy and the victim's age will be established. There will be no need for the State to prove those facts.

Of course, the question whether that pregnancy was engendered by intercourse with (penetration by) this defendant remains to be proved. We agree with Judge Pursel that the fact an abortion occurred has no bearing upon this issue. Our determination that the precise issue before the trial court and on appeal, i.e., the admissibility of "evidence of the victim's pregnancy and therapeutic abortion" in the circumstances presented, has been rendered moot, in no way limits the trial court's resolution of other evidentiary issues that may arise as the matter goes forward.

 
The appeal is dismissed as moot.

(continued)

(continued)

5

A-1096-05T5

RECORD IMPOUNDED

February 17, 2006