STATE OF NEW JERSEY v. D.A.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3821-03T43821-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.A.,

Defendant-Appellant.

________________________________

 

Submitted March 8, 2006 - Decided May 22, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 02-03-0487.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, of counsel and on

the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Daniel I.

Bornstein, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and third-degree tampering with a witness, N.J.S.A. 2C:28-5(a). During trial, the trial court granted defendant's motion to dismiss the charge of fourth-degree child abuse, N.J.S.A. 9:6-3. The trial court merged the conviction for sexual contact and endangering the welfare of a child into the conviction for sexual assault and sentenced defendant to nine years in prison, directing that defendant serve four and one-half years before becoming eligible for parole. The trial court also sentenced defendant to five years in prison for witness tampering, and directed that sentence to be served consecutively to the sentence defendant was then serving. The trial court further directed that the sentence for witness tampering be served prior to the sentence for sexual assault. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand the matter for resentencing.

The charges against defendant revolved around the State's contention that he had sexual intercourse with T.B. on January 15, 2002, when T.B. was thirteen years old and defendant was forty-three. T.B. lived with her mother, twin brother and older brother at the Plaza Motel in Mays Landing. Defendant moved into the motel several months prior to the assault, and his wife joined him there in November 2001. T.B.'s mother worked long hours at the Trump Marina Casino, and her father lived in Florida. The children were thus alone for significant periods of time.

The defendant and his wife became friendly with T.B. and her family and gave gifts to her on her birthday and to the entire family at Christmas. On one occasion, the defendant took T.B., her brothers and her best friend J.W. to the movies. On another occasion, defendant's wife took T.B. to get her nails done for her birthday.

J.W. and T.B. were best friends. Although they went to different schools, they spent weekends together, usually at J.W.'s house, but they did spend two weekends at T.B.'s around Christmas time in 2001. J.W. said that on the first weekend, defendant kept sneaking back and forth between his room and T.B.'s room, in which she, T.B. and T.B.'s brother were staying. She recounted an incident in which she saw defendant sitting very close to T.B. She said defendant put his arms around T.B., hugged her and kissed her. Asked to describe what she observed, J.W. said it was "French" or "tongue" kissing.

J.W. said that T.B. left the room at one point, leaving her alone with defendant. J.W. said that at that point defendant said to her "If you say anything to anybody, I will take full custody of [T.B.] and you'll never see her again." J.W. interpreted this as a threat to stop her from telling anyone what she had witnessed. She admitted, however, that she did not believe it was possible for defendant to get custody of T.B.

When J.W. returned home, she told her mother that T.B. and defendant had been hugging as if they were family. She did not, however, tell her mother that she had seen defendant kissing T.B.

T.B. testified that on the evening of January 15, she was in her room with her twin brother doing her homework when defendant came and said he needed to talk to her. The two went to defendant's room. T.B.'s older brother was there, and there was a pornographic movie on the television. Defendant asked T.B.'s brother to leave the room, and he did so. T.B. testified that defendant took off his pants as well as her pants and underwear and had sexual intercourse with her. She said that defendant told her he would kill her if she told anyone what had occurred.

Both of J.W.'s parents had observed a change in T.B.'s behavior and were concerned about it. J.W.'s mother testified that on the following weekend T.B. seemed very quiet and withdrawn, and she asked the girl if they should go to the store and get a pregnancy test. T.B. said yes and began to cry. J.W.'s mother asked if it had anything to do with T.B.'s boyfriend, and T.B. said no. She then asked if it had anything to do with defendant, and T.B. said yes. J.W.'s mother immediately called T.B.'s mother. The two women took T.B. to the hospital, but with the lapse of time, no physical evidence was obtained. The police were notified, and defendant was arrested.

Defendant's first argument is addressed to the trial court's denial of his motion for an acquittal on the charge of witness tampering. Defendant presented such a motion at the end of the State's case and renewed it at the end of the defense case. R. 3:18-1. Defendant contends on appeal that the trial court erred in denying these motions.

The charge of tampering with a witness in violation of N.J.S.A. 2C:28-5(a) related to the incident in which defendant told J.W. that if she told anyone that she had seen defendant kissing T.B. inappropriately he would obtain custody of T.B. and assure that J.W. never saw T.B. again. The statute defines the crime of witness tampering in the following manner:

A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to:

(1) Testify or inform falsely;

(2) Withhold any testimony, information, document or thing;

(3) Elude legal process summoning him to testify or supply evidence; or

(4) Absent himself from any proceeding or investigation to which he has been legally summoned.

[N.J.S.A. 2C:28-5(a).]

Defendant maintains that the trial court should have granted his motion because, at the time of his conversation with J.W., he had no reason to believe that "an official proceeding or investigation [was] about to be instituted."

The trial court in deciding defendant's motions, and this court in reviewing those determinations, are both guided by the same standard. State v. Moffa, 42 N.J. 258, 263 (1964). In considering such a motion, the State is to receive "the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom . . . ." State v. Reyes, 50 N.J. 454, 459 (1967).

We reject defendant's argument, as did the trial court. It is immaterial to this offense that a formal complaint had not yet been proffered against defendant. We agree with the position articulated by the trial court, that the critical element in this regard is the defendant's belief that his conduct subjected him to an investigation, a result he sought to prevent by convincing J.W. not to report what she had observed. As the Supreme Court noted, "[t]he mere attempt at witness tampering [] has an immediate and significant capacity to undermine the integrity of the criminal justice system." State v. Mendez, 175 N.J. 201, 211 (2002). The statute reflects "the societal need to discourage or preclude persons from interfering in the proper administration of justice. The evil to be addressed is approaching the witness rather than the likelihood of successfully convincing that witness not to testify or to alter such testimony." State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999).

It is no less an offense to seek to prevent a witness from conveying to authorities information that would trigger an investigation than to seek to prevent that witness from communicating with authorities who have received information from other sources that would justify the commencement of an investigation. The trial court appropriately instructed the jury that in deliberating on this charge, it had to focus on defendant's belief at the time he told J.W. that she would not see T.B. again if she reported to anyone what she had seen.

Defendant's next argument revolves around the testimony of J.W.'s mother, referred to earlier in this opinion, in which she related T.B.'s answers to her questions whether she should buy a home pregnancy testing kit and, when T.B. said yes, whether that was due to defendant. Although defendant made no objection at the time of trial, he now contends that this testimony did not come within the fresh-complaint exception to the hearsay rule, State v. Bethune, 121 N.J. 137 (1990); State v. Hill, 121 N.J. 150 (1990), and should not have been permitted. Because defendant made no objection at the time of trial, he must demonstrate that the admission of this testimony constituted plain error, that is, that it was "clearly capable of producing an unjust result." R. 2:10-2. Having reviewed the record in this matter, we are satisfied that the admission of this testimony provides no basis to reverse defendant's convictions.

Defendant's argument is premised upon the Supreme Court's statement in Hill, that "statements that are procured by pointed, inquisitive, coercive interrogation lack the degree of voluntariness necessary to qualify under the fresh-complaint rule." Hill, supra, 121 N.J. at 167. Thus, defendant characterizes the discussion between T.B. and J.W.'s mother as "inquisitive interrogation."

That, however, disregards the testimony presented as to the close relationship that existed between T.B. and the mother of her best friend. We cannot concur with defendant's view that the mother's discussion with T.B., prompted by what she observed of T.B.'s dramatic change in behavior, constituted interrogation.

Further, defendant's argument disregards the clear instructions to the jury as to the limited manner in which it could consider this testimony. Thus, the trial court told the jury that it could not consider that testimony as evidence that the assault had occurred or that T.B. was credible. It instructed the jury that the only reason the testimony had been presented was to rebut any inference that might have been drawn that the offense did not occur because T.B. did not complain to someone to whom she would ordinarily turn for sympathy or protection within a reasonable time. The court further instructed the jury in the following manner on the question whether T.B.'s statement was volunteered by her or was the product of interrogation:

If you find that [T.B.] made the complaint after being questioned, you may consider what prompted the question. Whether the questions were in response to some conduct, emotional or physical condition, statement or pattern of behavior of [T.B.] or whether they were initiated by the questioner without any provocation. You may also consider the nature and extent of the questions themselves and any motive on the part of the person who asked them in determining whether the complaint was truly of [T.B.] or was the product of suggestion by others.

It is presumed that the jury followed the court's instructions in these regards. State v. Coruzzi, 189 N.J. Super. 273, 301 (App. Div.), certif. denied, 94 N.J. 531 (1983).

Defendant's final argument revolves around his sentence, which he contends is manifestly excessive and violates the principles enunciated by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). He also complains that the trial court, in its selection of the aggravating factors, engaged in improper "double-counting" when it utilized aggravating factor number 2, the age of the victim. N.J.S.A. 2C:44-1(a)(2). We are compelled to agree with the latter contention because T.B.'s age was an element of the offense of sexual assault.

We thus remand the matter to the trial court for resentencing, in light of the principles subsequently enunciated by our Supreme Court in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005).

We noted at the outset of this opinion that the trial court, when it imposed sentence, directed that defendant serve his five-year sentence before serving his sentence for sexual assault. Defendant makes no complaint on appeal that the trial court abused its discretion in this regard.

We had the occasion to address such a directive in State v. Ellis, 346 N.J. Super. 583 (App. Div.), aff'd, 174 N.J. 535 (2002). There we stated:

Although specification that the less restrictive sentence be served prior to the more restrictive sentence is not illegal, it may, on a particular occasion, constitute an abuse of discretion. In a very real sense, directing that a less restrictive sentence be served prior to the more restrictive sentence is akin to the discretionary imposition of an additional period of parole ineligibility. It should be imposed only when accompanied by specific findings. A trial court that chooses to impose such a sentence should place on the record the specific consequences of that sentence.

[Ellis, supra, 346 N.J. Super. at 497 (internal citations omitted).]

The trial court, in connection with the resentencing, will have the opportunity to comply with this procedure.

Defendant's convictions are affirmed. The matter is remanded to the trial court for resentencing.

 

(continued)

(continued)

11

A-3821-03T4

RECORD IMPOUNDED

May 22, 2006

 


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