STATE OF NEW JERSEY v. M.T.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5603-03T45603-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.T.,

Defendant-Appellant.

____________________________________

 

Submitted October 18, 2005 - Decided May 11, 2006

Before Judges Payne and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-03-0516.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (John Henry Flammer, III, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a jury verdict finding him guilty of fourth-degree child abuse of S.T., his ten-year-old daughter, N.J.S.A. 9:6-3 (count three). The jury acquitted him of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and deadlocked on a charge of second-degree child endangerment, N.J.S.A. 2C:24-4 (count two). This was defendant's second trial, the first having ended in a mistrial after the jury failed to reach a verdict. Defendant's conviction was based upon evidence that, on February 10, 2001, he washed S.T.'s private parts with a soapy washcloth while she was in the shower, and later touched her private parts as the two prepared to sleep in the only bed in defendant's one-room apartment.

S.T. lived with her mother, but sometimes visited with her father. On this particular day, she and her father spent the day with her grandmother. S.T. did not plan to stay the night at her father's home and did not have a change of clothes. However, after S.T. and defendant returned to his home, they ate dinner, and defendant told S.T. to take a shower. Although S.T. had been washing herself since she was seven, defendant entered the bathroom while S.T. was in the shower, put shampoo he purchased earlier in the day on a terry cloth towel and washed S.T.'s hair, back, legs and armpits. S.T. testified that defendant also washed her private areas between her legs. Defendant denied having done so. S.T. twice asked defendant to stop washing her, which he did after the second request.

Defendant washed S.T.'s clothes in a bucket, and they were still wet when she got out of the shower. Defendant gave S.T. a long white T-shirt and socks to put on, but no underwear. S.T. then watched television until defendant told her it was time to go to bed. Although she protested that it was too early, S.T. obeyed and got into bed, lying on her side. Defendant then got into the bed and began touching S.T. between her legs. When asked what defendant did when he touched her vaginal area, S.T. testified that he "kept playing around" until she twice asked him to stop. Although he then stopped touching her, defendant told S.T. her mother told him to do it. S.T. testified that defendant told her not to tell anyone what happened, and they both went to sleep.

S.T. did not mention the incident until six days later when she told her mother what happened. During defendant's first trial, following a hearing in accordance with N.J.R.E. 104(a), the judge found S.T.'s statement to be trustworthy and otherwise admissible pursuant to N.J.R.E. 803(c)(27), as a statement by a child under the age of twelve relating to sexual misconduct against her. At the second trial, the court accepted that ruling as law of the case, and held S.T.'s statement to her mother to be admissible.

During the second trial, on direct examination by the prosecutor, and without objection from defense counsel, S.T. testified that she had taken showers at defendant's house before, and that he tried to help her, but she told him she could wash herself:

Q. Had you taken a shower at your dad's house before?

A. Yes.

Q. And when you took your shower at your dad's house on the other times that you were there did you have clean clothes to change into?

A. Yes.

Q. And the other time you took showers at your dad's house did you take them by yourself?

A. Yes.

Q. Did he ever help you take a shower before this day?

A. You mean any of the other times?

Q. Yes.

A. He tried to. But I told him I could wash up by myself.

Q. Okay. But the times before when you were there did you take a shower by yourself?

A. Yes.

Later, the prosecutor elicited the following testimony from S.T.'s mother:

Q. Back, this incident back in February, did she like to visit her father?

A. Yes. She had no problem with him.

Q. Did you get along with [defendant]?

A. Yes.

Q. Did she enjoy her visits?

A. She didn't say anything bad.

Q. Did she, when it was time for her to go to visit did she want to go?

A. At first she did and then all of a sudden she didn't want to go.

Q. And when did that happen?

A. About -

Q. Around this time?

A. Not around this time, but I'd say before the incident happened. Sometimes she said she don't want to go, sometimes she did. And when he kept on asking her and then she called me up at the job and asked me my dad want me to come over, do I have to go over? And I say you don't have to go over [if] you don't want to. But that day she changed her mind and she went.

Defendant's counsel, noting his desire not to highlight S.T.'s testimony about defendant's past efforts to help her wash, objected to the questioning of S.T.'s mother about S.T.'s past reluctance at times to visit defendant. As a result of the objection, the prosecutor ended that line of questioning. The next day, however, defendant moved for a mistrial, which was denied.

Defendant raises the following five issues on appeal:

THE TRIAL COURT ERRED BECAUSE IT DID NOT CURE THE PREJUDICIAL COMMENT [ABOUT DEFENDANT'S EFFORTS TO WASH S.T. IN THE PAST]

THE TRIAL COURT'S CHARGE CONFUSED THE JURY WHERE IT DID NOT ADEQUATELY DISTINGUISH THE FOURTH DEGREE CHILD ABUSE COUNT FROM THE THIRD DEGREE CHILD ENDANGERMENT COUNT

THE JURY DID NOT RATIONALLY APPLY THE REASONABLE DOUBT STANDARD TO THE FACTS IN EVIDENCE

THE VERDICT IS UNRELIABLE BECAUSE THE JURY WAS CONFUSED BY THE WORDY VERDICT FORM WHICH IMPROPERLY LISTED THE ELEMENTS OF EACH OFFENSE

THE TRIAL COURT'S SOLE RELIANCE ON THE PRIOR COURT'S EVIDENTIARY RULING WAS PREJUDICIAL ERROR BECAUSE IT DEPRIVED THE DEFENDANT OF A FAIR AND IMPARTIAL TRIAL

We reject each of defendant's arguments and affirm.

First, we conclude defendant was not prejudiced by S.T.'s testimony that she rebuffed his past attempts to wash her, because her statement did not allege sexual or attempted sexual conduct. Furthermore, her testimony was consistent with defense counsel's opening statement that it was not improper for defendant to wash his daughter with a washcloth in the shower, and, indeed, he was "just being a responsible parent." Moreover, given that S.T.'s statement itself was not prejudicial, we reject defendant's argument that a mistrial was required because of the combined effect of that statement and the later testimony of S.T.'s mother that S.T. sometimes did not want to go to defendant's home. As noted by the trial judge in his decision denying defendant's motion, a mistrial should be granted only to avoid a manifest injustice. State v. Di Rienzo, 53 N.J. 360, 383 (1969). Here, manifest injustice did not occur. Furthermore,

[a] motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. The power is to be exercised with the greatest caution, in the furtherance of justice between the accused and the State. Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right.

[State v. Winter, 96 N.J. 640, 647 (1984).]

In this case, for the reasons stated above, we find no abuse of discretion.

Moreover, defendant's counsel rejected an offer by the judge to provide a curative instruction to the jury. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974). "The inquiry in this situation calls for a close, balancing examination of the nature of the error, its impact on the trial and the jury's verdict, and the quality of defendant's motives and conduct in bringing about the error." Id. at 278. Even assuming the combined statements of S.T. and her mother resulted in some prejudice to defendant, we find the impact on the trial and the jury's verdict to be minimal, particularly in view of the fact that the most significant evidence against defendant was S.T.'s testimony about what occurred in bed, not in the shower. Therefore, the judge's acceptance of defendant's decision to forego a curative instruction is not a basis for reversal.

We also reject defendant's contention that his conviction should be reversed because the trial judge's charge did not adequately distinguish the child abuse count from the child endangerment count. After charging the jury on the elements the State was required to prove to establish child abuse, the judge concluded by saying: "If the State has proven each of the four elements beyond a reasonable doubt then you must find the defendant guilty of endangering the welfare of a child." Although the judge misspoke when he said "endangering the welfare of a child" instead of "child abuse," neither the State nor defendant raised any objection to the charge.

"'[A]ppropriate and proper charges to a jury are essential for a fair trial,' and erroneous instructions on material issues are presumed to be reversible error, excusable only if they are harmless beyond a reasonable doubt. Such errors are 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Warren, 104 N.J. 571, 579 (1986) (citations omitted). However, in this case, the judge's misspoken instructions clearly were harmless beyond a reasonable doubt. Therefore, there was no reversible error.

The charge on the law was clear and accurately instructed the jury on the elements the State must prove for defendant to be found guilty of child abuse. Furthermore, it followed clear and accurate instructions on the sexual assault and child endangerment charges defendant also faced. The jury verdict form also set forth the three crimes charged and distinguished one from the other. Considering the entire charge as a whole, the misstatement caused no harm.

We also reject defendant's contention that the jury's inconsistent verdicts require a reversal. Defendant argues that the jury did not rationally apply the reasonable doubt standard to the facts in evidence because, although the three crimes charged were based on the same factual allegations, the jury found defendant guilty of child abuse, but found him not guilty of sexual assault and deadlocked on child endangerment. We do not know on what basis the jury distinguished between the crimes charged and reached its several verdicts, and "[o]ur jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room." State v. Muhammad, 182 N.J. 551, 578 (2005). Moreover, "[i]nconsistent verdicts are permitted as long as there is sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt on the charges on which the defendant was convicted." State v. Ellis, 299 N.J. Super. 440, 456 (App. Div. 1997).

Here, the evidence was sufficient to permit the jury to find beyond a reasonable doubt that defendant abused S.T. in violation of N.J.S.A. 9:6-3. Abuse, as defined by N.J.S.A. 9:6-1(e), is "the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child." Clearly, S.T.'s testimony that defendant touched her "private areas" in between her legs, first in the shower and later in bed, was sufficient evidence upon which to find defendant guilty beyond a reasonable doubt.

Although defendant argues that the testimony was elicited through leading questions, no objection was raised at trial. Furthermore, our review of the record leads us to the conclusion that the questioning was fair, and to the extent that some questions were leading, we note that "substantial leeway is granted when witnesses of tender age, who may be reluctant to testify, are involved." In the Interest of B.G., 289 N.J. Super. 361, 370 (App. Div. 1996). In consideration of a defense motion for a mistrial on the basis of improper admission of prior bad-acts testimony, the judge reviewed S.T.'s testimony and commented:

First of all, the witness' testimony on direct was proffered very reluctantly. The State had to propound leading questions. The questions were not even objected to by defense counsel because the difficulty the victim was having was so apparent. As the examination progressed from the beginning of direct to the end of cross-examination the witness, who is 13, actually began to suck her thumb and otherwise displayed signs of extreme distress. She became emotional a couple of times, we had to call breaks so that she could compose herself. By the end she was quite hostile towards the attorneys. Her answers were difficult to understand because she spoke so softly, was not speaking clearly.

Given the circumstances described by the judge, permitting some leading questions was appropriate. Therefore, we conclude that the State properly and fairly elicited testimony establishing facts sufficient to support the jury's verdict.

Defendant maintains that because the verdict sheet was "wordy" and "improperly listed the elements of each offense" it confused the jury. He also contends the judge was "arbitrary and capricious" because he did not explain his decision to use a verdict sheet that set forth the crimes to be considered in language that mirrored the indictment. These arguments have no merit.

We find no abuse of discretion in the use of a verdict form that mirrors the wording of the indictment, and the defendant has cited no authority that would suggest a contrary result. We also do not find the language used to be confusing or otherwise objectionable.

Finally, we reject defendant's contention that the trial court erred in relying on the finding of the judge in the first trial, that S.T.'s complaint to her mother made about her father's conduct six days after the incident was admissible as a fresh complaint N.J.R.E. 803(c)27. The first trial judge made the ruling after a hearing pursuant to N.J.R.E. 104(a) in which he determined the statement had "inherent trustworthiness" and that it was understandable that the child delayed in confiding in her mother, particularly in view of the fact that her father had instructed her "not to tell." We find no error in the first trial judge's decision. Therefore, we find no error in the second trial judge's decision not to relitigate the issue.

Affirmed.

 

Although not specifically raised by defendant in his brief, we note the judge also erred in the abuse charge when he stated that "defendant" must prove that S.T. was under the age of eighteen. We also find this misstatement was harmless beyond a reasonable doubt. The age of S.T. was never an issue. It was clear that she was ten when the abuse occurred. Furthermore, throughout the charge, the judge correctly instructed the jury that the State had the burden of proving each element of the crime charged beyond a reasonable doubt.

(continued)

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13

A-5603-03T4

RECORD IMPOUNDED

May 11, 2006