STATE OF NEW JERSEY v. V. J.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5041-04T45041-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

J.R.,

Defendant-Appellant.

________________________________

 

Submitted June 21, 2006 - Decided July 17, 2006

Before Judges Wefing and Coburn.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. L-03-10-2014.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Tabakman,

Designated Counsel, of counsel and on

the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Laurie B. Gerhardt,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Tried to a jury, defendant was convicted of attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c)(4); criminal sexual contact, N.J.S.A. 2C:14-3(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was acquitted of sexual assault, N.J.S.A. 2C:14-2(c)(4), and terroristic threats, N.J.S.A. 2C:12-3(a), (b). At sentencing, the trial court denied the State's motion to sentence defendant to a discretionary extended term, N.J.S.A. 2C:44-3(a), and sentenced defendant to ten years in prison, with a five-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's victim was K.M., the thirteen-year-old daughter of defendant's girlfriend. In the spring of 2002, defendant, K.M., her two younger brothers, and K.M.'s mother were all living together in the Neptune Motor Lodge. Defendant and K.M.'s mother shared one bed, the two boys the second bed and K.M. slept on the floor between the two beds.

K.M's mother was working as a waitress at a nearby diner. She generally worked the overnight shift on weekends and filled in other shifts if needed. K.M. testified to four incidents that she said occurred while her mother was at work. On two occasions, she said, defendant digitally penetrated her vagina. She also testified to his attempts at penile penetration, which she was able to resist.

She said that on each of these occasions, she had been on the floor between the two beds and her brothers were asleep on one of the beds. She said she had struggled and resisted each time, but her brothers were very sound sleepers and did not wake up. She said that on each of these times, defendant threatened to kill her if she told anyone. She had seen defendant hit her mother, and his threats frightened her.

In the fourth incident, K.M. said she woke up to find defendant and her mother engaged in a heated argument during which each struck the other. K.M.'s mother testified that she returned home early from work to find defendant straddling K.M. on the bed. K.M.'s pants were unbuttoned and unzipped. She yelled at defendant, asking what he was doing to her daughter. He replied that he was merely reaching for the remote control for the VCR. She noticed, however, that the control was sitting on top of the VCR.

K.M. told her mother that nothing had happened, and K.M.'s mother eventually calmed down. K.M. testified that she did this because of her fear of defendant.

In June 2002, defendant and K.M.'s mother broke up. She did not see him thereafter, but she still did not tell her mother what had occurred. In May or June 2003, K.M.'s mother read her daughter's diary. Although it contained no entries about defendant, it did refer to K.M.'s plan to engage in sexual activity with a young man she knew. K.M.'s mother became angry, and the two had a fight. During that fight, K.M. broke down in tears and told her mother what defendant had done to her.

K.M.'s mother did not go promptly to the police. She said she had been assaulted when she was young and the police had made her feel as if it were her fault. She did not want her daughter to go through the same experience.

Toward the end of June 2003, K.M.'s mother attempted suicide. The New Jersey Division of Youth and Family Services ("DYFS") was notified because of her children. A DYFS worker met with her and during that interview, K.M.'s mother mentioned what K.M. had told her about defendant. The worker insisted that the police be notified. Defendant's indictment followed.

On appeal, defendant presents the following arguments.

POINT I THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL.

POINT II THE COURT ERRED BY ALLOWING THE FRESH COMPLAINT TESTIMONY TO BE PRESENTED TO THE JURY.

POINT III THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT.

POINT IV THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

Defendant's arguments do not require extensive discussion. Defendant's first contention in essence asks that we engage in our own weighing of the credibility of K.M. and her mother. This we cannot do. Although portions of their testimony were vulnerable in certain respects, defense counsel pointed out those deficiencies to the jury. It is clear from the verdict that the jury carefully analyzed the testimony it heard, accepting some portions and rejecting others. We have no basis to interfere with its assessment.

Prior to opening statements, the trial court conducted a Rule 104 hearing to determine whether to admit testimony about K.M.'s statement to her mother as "fresh complaint" evidence. Defendant contends that the trial court's decision to admit that testimony on such a basis was erroneous and entitles him to a new trial. He stresses the length of time that had elapsed between the alleged incidents and K.M.'s statement to her mother. He also stresses the circumstances under which K.M. told her mother, contending that K.M. was attempting to deflect her mother's anger, rather than seeking comfort and consolation.

We reject these arguments, as did the trial court. There is no calendar by which to measure when a statement may be considered to fall within the parameters of fresh complaint. State v. L.P., 352 N.J. Super. 369, 382-83 (App. Div.), cert. denied, 174 N.J. 546 (2002) (noting "[t]he requirement that a victim's statements be made within a reasonable time after an alleged sexual assault to be admissible under the fresh complaint rule is applied more flexibly in cases involving children than in those involving adults"). Certainly K.M.'s mother qualified as an individual to whom she would be expected to turn for comfort and protection. State v. Buscham, 360 N.J. Super. 346, 358 (App. Div. 2003). K.M.'s motivation in making this statement was squarely before the jury and up to it to resolve. Defendant makes no complaint, moreover, of the clear and accurate instructions to the jury as to the limited utility of fresh complaint testimony.

Additionally, we reject defendant's assertion that the verdict sheet was improper. Its format did not unfairly prejudice defendant, as demonstrated by the several "not guilty" verdicts the jury returned. In addition, it called for the jury to make a general determination of guilty or not guilty before asking the jury to indicate the foundation for its finding. In this respect, the verdict sheet was closely akin to that we approved in State v. M.L., 253 N.J. Super. 13, 26-28 (App. Div. 1991).

Finally, we reject defendant's challenge to his sentence. Although the trial court imposed the maximum term for a second-degree offense, it relied only on aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1(a)(3), (6), (9), which were amply supported by defendant's prior record. There was no violation of the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005).

Defendant's convictions and sentence are affirmed.

 

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A-5041-04T4

RECORD IMPOUNDED

July 17, 2006