STATE OF NEW JERSEY v. V.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1170-04T51170-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.F.

Defendant-Appellant.

______________________________________________________________

 

Submitted December 13, 2005 - Decided July 27, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-08-0776-I.

Afflitto, Raimondi & Afflitto, attorneys for appellant (Joseph T. Afflitto, Sr., of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, V.F., appeals from two pretrial decisions made by the trial judge as well as the sentence imposed for his convictions. A jury found that defendant, being at least four years older than Y.A. and J.L., was guilty of the following crimes: second degree sexual assault of Y.A., a child less than thirteen years old by committing an act of sexual contact upon her on April 19, 2003, N.J.S.A. 2C:14-2b (count one); third degree engaging in sexual conduct on April 19, 2003, that would impair the morals of Y.A., a child under the age of sixteen, N.J.S.A. 2C:24-4a (count two); second degree sexual assault upon J.L., a child less than thirteen years old, by committing acts of sexual contact with J.L. from January 1, 2003, up to and including April 19, 2003, N.J.S.A. 2C:14-2b (count three); third degree engaging in sexual conduct from January 1, 2003, up to and including April 19, 2003, that would impair the morals of J.L., a child under the age of sixteen, N.J.S.A. 2C:24-4a (count four).

On this appeal defendant makes the following arguments:

POINT I: THE COURT ERRED IN PERMITTING EVIDENCE OF A PRIOR CRIME TO BE PRESENTED TO THE JURY IN THIS CASE AND DEFENDANT WAS SUBSTANTIALLY PREJUDICED THEREBY.

A. THE EVIDENCE WAS NOT RELEVANT OR MATERIAL TO AN ISSUE IN THE CASE.

B. THE EVIDENCE OF THE PRIOR ACT WAS NOT SIMILAR TO THE ACTS DESCRIBED BY J.L. AND Y.A.

C. THE ACTS WERE NOT CLOSE IN TIME.

D. THE EVIDENCE WAS NOT NECESSARY.

E. THE EVIDENCE ADMITTED WAS HIGHLY PREJUDICIAL.

POINT II: THE COURT ERRED IN DENYING SEVERANCE.

POINT III: THE COURT'S SENTENCE WAS EXCESSIVE AND THEREFORE WAS AN ABUSE OF DISCRETION.

We have considered defendant's arguments in light of the record and applicable law and find them to be without merit.

In March or April 2003, eleven-year old J.L., exhibited signs of being emotionally upset. Eventually, her legal guardian, I.L., was able to ascertain from J.L. that defendant, their pastor, had tried to abuse her in their home. According to J.L., defendant wanted to kiss her and tried to touch J.L.'s breasts underneath her shirt. Defendant attempted to gain J.L.'s consent by telling her that God had told him that he must check her breasts and touch them so that her breasts would get bigger. J.L. ran away.

I.L. and other members of her family confronted defendant about J.L.'s allegations. Defendant rebuffed them by stating that J.L. was lying and that the devil put her up to it. I.L. told defendant she wasn't going to call the police, but if she heard of defendant sexually abusing another young girl she would notify the police immediately. The pastor then left and J.L. reaffirmed that her allegations against defendant were true.

J.L. and Y.A. attended the same school, but were not close friends. Both attended the church at which defendant was a pastor. On April 19, 2003, defendant sexually assaulted Y.A., who was eleven-years-old at the time. Defendant sent D.A., Y.A.'s fifteen-year-old brother, on an errand and while D.A. was away, defendant was alone with Y.A. for approximately fifteen minutes. Sometime later after he returned home, D.A. observed Y.A. crying. Y.A. told her brother that defendant had done something to her but that she was afraid because defendant threatened to notify immigration authorities if she spoke to anyone about what he had done. Y.A. and her family are all in the United States illegally. Their country of origin is Mexico.

Y.A. related that defendant brought her and her sisters something to eat. Then, defendant took Y.A. away from the others and prayed over her. While praying for Y.A., defendant touched Y.A.'s breast and tried to put his hand into her pants. Y.A. escaped to her room and remained there, crying.

After learning of defendant's actions, G.A., Y.A.'s father, was out on the balcony of his apartment where he observed J.L. G.A. recalled that defendant had made a comment regarding J.L. and the boys whose company she kept. G.A. then asked J.L. about defendant and why she no longer attended their church. J.L. informed G.A. he would have to speak with her grandparents if he wanted to know about defendant. When G.A. went to J.L.'s home, he learned that defendant had previously touched J.L. on her breast. The police were called and both J.L. and Y.A. reported defendant's sexual assaults upon them.

Defendant had been previously convicted as a result of his guilty plea to the charge of engaging in sexual conduct which would impair or debauch the morals of a child, a crime of the third degree, N.J.S.A. 2C:24-4a. That child, H.R., was under the age of sixteen at the time of the offense. H.R. testified both at the preliminary hearing and at defendant's trial. At trial, however, the jury did not hear that defendant pled guilty to H.R.'s allegations.

Defendant was the half-brother of H.R.'s step-mother. According to H.R., defendant engaged in sexual conduct with her when she was fourteen years old. On September 30, 1992, H.R. encountered defendant while she was on her way to the library. Defendant took her to the library and gave her a ride home. Defendant accompanied H.R. into her home. While inside, defendant told H.R. a story about dogs he had watched having sex. Defendant told H.R. that he wanted to demonstrate to her what he observed the dogs doing and then he began rubbing between her legs and crotch area with his hands. He also spoke to H.R. about her step-mother's recent miscarriage and her father having to go with her for a "D & C." Defendant described how H.R.'s father consoled her step-mother by rubbing her shoulders. Defendant then started rubbing H.R.'s shoulders and touching her breast. He also kissed her on her lips. H.R. told defendant to leave, which he did.

Defendant returned to H.R.'s home later that evening, at which time H.R. asked her step-mother to have defendant leave. The step-mother wanted to know why. H.R. divulged what had transpired between her and defendant earlier that day. The step-mother made defendant leave and called the police. Defendant was later indicted. He then pled guilty to engaging in sexual conduct which would impair or debauch the morals of a child. He received six years probation.

Following the presentation of evidence, the jury found defendant guilty on all counts. The court sentenced defendant to eight years on count one, with parole ineligibility for eighty-five percent of the sentence; to five years on count two, to be served concurrently with count one; to eight years on count three, with parole ineligibility for eighty-five percent of the sentence, to run consecutive to count one; and to five years on count four, to be served concurrently with count three. Subsequently, the judgment of conviction was amended to merge count two into count one and count four into count three. That amendment had no effect on the aggregate sentence imposed on defendant.

Defendant asserts that H.R.'s testimony of defendant's prior bad act was inadmissible because (1) it was not relevant; (2) it was not similar to the acts described by J.L. and Y.A.; (3) the prior act was not close in time to the acts against J.L. and Y.A.; (4) H.R.'s testimony was not necessary; and (5) H.R.'s testimony was highly prejudicial. The admissibility of other crimes, wrongs or acts is governed by N.J.R.E. 404(b). That rule states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[(N.J.R.E. 404(b).]

Evidence of other crimes, wrongs or acts, therefore, is subject to exclusion unless it is relevant to prove some other fact genuinely in issue. State v. G.V., 162 N.J. 252, 257 (2000) (citations omitted). If such evidence is relevant, it is admissible, subject to balancing under N.J.R.E. 403, to determine whether the probative value is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury. In performing the weighing process called upon under N.J.R.E. 403, the trial court's "discretion is a broad one." State v. Sands, 76 N.J. 127, 144 (1978).

The admissibility of relevant evidence falls largely within a trial court's discretion. State v. Nelson, 173 N.J. 417, 470 (2002). A trial court's rulings regarding the admission of other crime evidence under N.J.R.E. 404(b) are reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 266 (1987).

The New Jersey Supreme Court reiterated the principles that govern the admission of evidence of other crimes, wrongs, or acts, initially stated in State v. Marrero, 148 N.J. 469, 482-83, 495 (1997), as follows:

In addition to being relevant to an issue genuinely in dispute, the other-crime evidence must "be necessary for [the disputed issue's] proof." Because of its damaging nature, in determining the probative worth of other-crime evidence, "a court should consider . . . whether its proffered use in the case can adequately be served by other evidence."

Once it is determined that the other-crime evidence is material to a fact genuinely in issue and that the other-crime evidence is necessary, "the probative value of the proffered evidence [must] be carefully balanced against the danger that it will create undue prejudice against the defendant." Where the probative value is outweighed by prejudice to the defendant, then it is inadmissible. Evid. R. 4 (currently N.J.R.E. 403). Consequently, the primary focus of Evidence Rule [404(b)], when examined in conjunction with Evidence Rule [403], is to view it as a rule of exclusion rather than a rule of inclusion.

After many years of decisional law determining when other-crime evidence is admissible, a four-part test has been distilled. That test is designed "to avoid the over-use of extrinsic evidence of other crimes of wrongs." That rule is as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

. . . .

When other-crime evidence is admitted, "the court must instruct the jury on the limited use of the evidence." Because of the inherently prejudicial nature of other-crime evidence, the court's instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'"

[G.V., supra, 162 N.J. at 257-58 (quoting Marrero, supra, 148 N.J. at 482-83, 495) (alterations in original) (internal citations omitted).]

According to the Court's analysis, the principles that are crucial to determining the admissibility of other crimes, wrongs, or acts are:

The other-crime evidence must be relevant to an issue "genuinely in dispute."

The other-crime evidence must be "necessary for [the disputed issue's] proof."

The court must "explain precisely" to the jury the permitted and prohibited uses of the evidence.

G.V., supra, 162 N.J. at 258 (alteration in original).

In G.V., a father was prosecuted for alleged crimes against his daughter, including aggravated sexual assault, sexual assault, endangering the welfare of his child, and terroristic threats. Id. at 254. The State sought to introduce evidence of the father's prior attacks on the victim's older sister, also his daughter. Id. at 258. One reason cited for the trial court's admission of evidence of the prior acts committed against the older sister was "a possible defense by defendant of accident or mistake could be raised by defendant, claiming that he was merely being affectionate towards his daughter and showing her fatherly love." Id. at 259. This "possible defense" by defendant, however, was never raised. Ibid. This court stated and the Supreme Court agreed that such a defense in this instance would have been absurd since the acts of abuse were committed over a number of years. Ibid. Both courts noted, however, that if the case had dealt with "an isolated incident, or even a few separate occasions, of allegedly improper touching, the 'possible defense' might have been an issue." Ibid. In such a case, a reasonable defense could rely on accident or mistake. Ibid.

The admission of H.R.'s testimony satisfied the requirements of G.V. H.R.'s testimony of her assault was similar in kind to the assaults on J.L. and Y.A. In all three instances, defendant isolated the young girls and provided them with a story as to why he was touching them. With H.R., it had to do with the routine of dogs having sex as well as demonstrating how H.R.'s father had consoled her step-mother following a miscarriage. As to J.L., defendant told her that God told him to touch her breasts so they would get bigger. As to Y.A., defendant remarked that Y.A.'s brother had touched her in a sexual way as well. The trial court observed that H.R. and the two victims were of similar age and visual appearance. All of the alleged incidents took place while the girls' parents were not home. In all cases, defendant touched the girls' breasts and either kissed or attempted to kiss them.

The evidence garnered from H.R. is clear and convincing as defendant pled guilty to the accusations. The evidence was highly probative to show that defendant's actions were not misconstrued by the victims and that his actions did not occur by accident or mistake. The risk of undue prejudice did not substantially outweigh the high probative value of the evidence. We also acknowledge that the trial court's instructions conformed to the requirements of G.V. The court carefully formulated and precisely explained the permitted and prohibited purposes of the evidence with sufficient reference to the facts of the assaults on Y.A. and J.L.

As for the "close-in-time element," we conclude that no bright line rule can be established. Each case must be decided on its own set of facts. The ten and one-half year gap in this case between the assault on H.R. and those upon J.L. and Y.A. did not preclude admission of H.R.'s testimony. New Jersey has validated a six year difference in time. State v. Hashner, 246 N.J. Super. 495, 498 (App. Div. 1991). The trial court examined case law from other jurisdictions and found that some jurisdictions have allowed evidence regarding prior acts involving sexual assaults that occurred more than six years prior. See State of Louisiana v. Jackson, 625 So. 2d 146 (1993) (finding admissible other crimes 15 to 24 years prior); People of Colorado v. Adrian, 744 P.2d 768 (Colo. Ct. App. 1987) (finding admissible other crimes 15 to 19 years prior); State v. Harp, 518 N.E.2d 497 (Ind. Ct. App. 1988) (finding admissible other crimes 10 years prior).

We recognize that sexual offenses against minors are different in nature than other crimes prohibited by society and, therefore, "close-in-time" may be gauged differently in that context. See, e.g., State v. P.H., 178 N.J. 378, 385-86 (2004) (observing that child sexual abuse accommodation syndrome (CSAAS) "identifies [the] patterns of conduct or behavior that may be exhibited by sexually abused children[,]" to include "secrecy, a sense of helplessness by the child, coercion or accommodation, [and] delayed disclosure of the abuse . . . ."). As such, the rules of evidence regarding prior crimes may be treated differently in sexual offense cases involving minors. We need not set a bright line rule at this juncture. We leave such decisions to the sound discretion of the trial courts.

Next, defendant contends that counts one and two, pertaining to Y.A., should have been severed from counts three and four, pertaining to J.L., in light of the prejudicial impact. Rule 3:7-6 provides:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

In this context, the critical phrase in R. 3:7-6 is "if the offenses charged are based on 2 or more acts or transactions connected together."

Here, both victims alleged they were assaulted by defendant, while he was acting in his capacity as a pastor for the Pentecostal Church. Both victims and their families were members of defendant's church, which does not have a large congregation. Y.A. was sexually assaulted on April 19, 2003. J.L. was sexually assaulted sometime between January 1, 2003 and April 19, 2003. Both alleged assaults consisted of defendant touching the victim's breasts. Thus, there is a significant connection between the two events.

Under R. 3:7-6, severance is authorized, in the trial court's discretion, if joinder is likely to result in prejudice. Rule 3:15-2(b) provides:

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

"A trial court must be accorded ample discretion in determining whether to grant relief from joinder of offenses because of the potential for prejudice." State v. Pitts, 116 N.J. 580, 601 (1989). "A critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." Id. at 601-02.

Here, evidence concerning the abuse of both victims would have been admissible in each trial even if the matters had been severed since the four-part test from G.V. was satisfied. G.V., supra, 162 N.J. at 257. The evidence was material to show defendant's motive of obtaining sexual gratification as to each child. It demonstrated an absence of mistake or accident on defendant's part in touching the girls as well as showing that the girls did not misinterpret defendant's actions. Moreover, the assaults on both girls were extremely similar and they occurred within three months of each other. In both instances defendant touched the girls' breasts, the girls were of similar age and looked similar to one another and both events contained religious overtones.

Contrary to defendant's assertions, the trial court did adequately address the potential prejudice involved. In making his decision, the judge stated:

And then lastly the probative value must outweigh the prejudicial effect. Without question there is prejudice to this type of evidence. However, I find that as to the severance issue, the evidence is highly probative.

I've considered, fully considered and weighed the probative value versus the prejudicial effect, and I find that the probative value greatly outweighs the prejudicial effect. And therefore I'm satisfied based on my feeling of the case, my observations of the witnesses -- their faces, their expressions, their body language -- that the probative value outweighs the prejudicial effect and therefore even if I sever counts one and two from counts three and four, I would permit the evidence of the other child and vice versa under R. 404(b). And therefore in that the two juries would hear the evidence of the other counts even if the matters were severed and giving due consideration to judicial economy, including but not limited to the difficulty which the witnesses will have if they have to testify twice, based on all of that, I'm denying the defendant's motion to sever counts one and two from counts three and four under the rationale and holding of State v. Krivacska [ 341 N.J. Super. 1 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied sub nom., Krivacska v. New Jersey, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002)].

The trial court did not abuse its discretion in denying defendant's motion for severance.

Defendant cites State v. Orlando, 101 N.J. Super. 390, 394 (App. Div. 1968), for the premise that in deciding not to sever the trial court must state that it considered judicial economy. If that is a requirement, the judge's reasoning, quoted above, meets the requirement. Moreover, it is obvious that trying defendant for the assaults on both victims at the same time saves judicial resources. However, G.V. does not include such a requirement and the Supreme Court decided G.V. well after Orlando was decided.

Finally, defendant argues the sentence is excessive because he had an opportunity to plead guilty before trial and receive five years in prison, eighty-five percent of which would have been served without eligibility for parole. Defendant asserts, in obvious disregard of the emotional effects of his conduct, that the girls sustained no permanent injuries and that the judge imposed consecutive sentences as retribution for defendant exercising his constitutional right to a trial. Lastly, defendant argues that his poor health should preclude a consecutive sentence.

In New Jersey there is no presumption for imposing concurrent sentences. Abdullah, 184 N.J. 497, 513 (2005). Thus, the maximum sentence allowable by the jury verdict is the "aggregate of sentences for multiple convictions." Id. at 513-14. N.J.S.A. 2C:44-5(a) provides in relevant part that "when multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." The imposition of consecutive sentences is within the discretion of the trial court. Id. at 512.

In State v. Yarbough, 100 N.J. 627, 643-44 (1985), the Supreme Court created the guidelines a trial court should consider when determining whether to impose a consecutive or concurrent term. The Yarbough guidelines are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) [was eliminated by statute.] N.J.S.A. 2C:44-5(a)(2).

The trial court adequately addressed the Yarbough factors. According to the judge:

The reason for the consecutive sentence is that these crimes are independent of each other. They occurred on separate dates, in different places and they involved separate victims.

And I am also sentencing defendant to consecutive terms because of the public policy and the position of our legislature and our courts that there are no free crimes. And if I were to make the sentence concurrent, I would be doing just that. I would be giving him the benefit of a free crime.

The imposition of consecutive sentences was not an abuse of the trial court's discretion. These were separate crimes, committed on different dates, involving different victims. To hold otherwise would reward a sex offender with a windfall sentence for committing multiple sexual assaults.

Defendant has failed to produce one iota of evidence to support his contention that the trial court imposed a consecutive sentence to penalize him for going to trial. Also, the plea offer given to defendant by the State prior to the start of trial is irrelevant. See N.J.R.E. 410. Lastly, the judge took into account defendant's health under mitigating factor (11), however, defendant's health does not preclude a consecutive sentence.

Affirmed.

 

We also note that under the Federal Rules of Evidence the proximity in time of a prior sexual assault is not a relevant factor to determine its admissibility. Rule 413(a) provides that "In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." In similar language F.R.E 414, generally allows evidence of another or prior offense of child molestation to be admitted without regard to temporal proximity.

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A-1170-04T5

RECORD IMPOUNDED

July 27, 2006