STATE OF NEW JERSEY v. F.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6580-03T46580-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

F.P.,

Defendant-Appellant.

_____________________________________________

 

Argued March 15, 2006 - Decided June 16, 2006

Before Judges Grall and Humphreys.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 02-10-03794-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Barbara A. Hedeen,

Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Joan E. Love,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged in a 13 count indictment with aggravated sexual assault and related crimes against two of his children, N.B. and A.B. He was convicted on all counts except counts six and thirteen. As to those counts, he was found not guilty of second degree aggravated assault but guilty of the lesser included third degree crime of aggravated assault.

He was sentenced to an aggregate term of 52 years. The judge found 34 years of the sentence to be subject to the No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2.

The defendant appeals his conviction and sentence. He contends: 1) the judge should have instructed the jury not to consider evidence of one set of offenses as evidence establishing the others; 2) the expert witness for the state should not have been permitted to relate inadmissible hearsay substantiating the victims' credibility while adding "facts" to the state's case; 3) the jury did not specifically find that either child was sexually assaulted on or after June 29, 2001, and, therefore, the NERA sentence must be vacated; 4) the sentence is unconstitutional and manifestly excessive.

We affirm as to the conviction. We reverse the NERA holding and remand for further proceedings in accordance with State v. Natale, 178 N.J. 51 (2003)(Natale I). We also remand for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005)(Natale II).

I

N.B. testified as follows. The defendant beat her with a belt and extension cords. He also required the children to beat each other as a means of discipline. He smothered her and her sister A.B. by placing his hands over their mouth and nose which sometimes caused them to faint.

When N.B. was about 11 or 12 years old, the defendant, as a method of punishment, let her choose to either be smothered or have sex with him. She chose to have sex because she did not want to die from the smothering. The defendant would put his penis inside her vagina at different times either at night or during the day.

When she was about 14 years old, she told her teacher about her father's conduct. The Division of Youth and Family Service (DYFS) was called. This prosecution followed.

A.B. is two years older than her sister. She testified that her father also beat her with a belt and an extension cord or a stick. She was also smothered and given a choice of smothering or sex. Her father had sexual intercourse with her on many occasions. After N.B. spoke to the teacher, DYFS questioned A.B. as well.

The teacher testified that in June 2002, she and N.B. had a conversation. NB was very upset. N.B. told the teacher about her father having sex with her and about the beatings.

An expert in the field of pediatric medicine and child abuse testified that she examined both girls in July 2002. She performed a complete general examination which included a genital and rectal examination. N.B. had two tears in the hymen which were consistent with penetration. A.B. had multiple hymenal tears which were consistent with chronic penetration. Both girls told her that they had been sexually abused by their father. The expert concluded that her findings were consistent with the girls' report of sexual abuse.

The defendant testified that he was a very strict father and used to beat his children with a belt. He also admitted smothering them as a punishment, but not to the point of unconsciousness. He denied having sex with any of his children.

II

Defendant contends that the jury should have been instructed not to consider the testimony of the two children as bolstering the credibility of each, or as establishing the propensity of the defendant to commit crimes. He asserts that the prejudice caused by the failure of the judge to give this instruction was magnified by the prosecutor "capitalizing" on the issue in his summation.

The judge instructed the jury as follows: "There are thirteen offenses charged in the indictment here. The defendant is entitled to have his guilt or innocence separately considered on each count by the evidence which is relevant and material to that particular charge based upon the law as I am giving it to you now at this time."

When other crime evidence is introduced at trial, the jury must be instructed on its limited use. State v. Krivacska, 341 N.J. Super. 1, 1-42 (App. Div.) certif. denied. 170 N.J. 206, cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). The court should instruct the jury that it cannot consider the other-crime evidence to determine that the defendant was predisposed to commit the crime that was charged. Id. at 38-39. The court's charge in the present case did not contain that instruction. Hence, the charge is deficient. Id. at 42.

Proper jury instructions are essential to a fair trial. State v. Bunch, 180 N.J. 534, 542 (2004). An erroneous instruction on material points is presumed to possess the capacity to unfairly prejudice a criminal defendant. Ibid.

However, here the error was an incomplete instruction rather than an affirmative misstatement of the law. Under these circumstances the test is whether the possibility of injustice is sufficient to raise a reasonable doubt as to whether the error led the jury to a result which it otherwise might not have reached. State v. G.S., 145 N.J. 460, 473 (1996); State v. Marrero, 148 N.J. 469, 496-497 (1997).

A fact sensitive analysis must be made in such cases to determine whether prejudice has resulted from the failure to give a "sufficiently limiting instruction governing the use of other-crime evidence." State v. G.S., supra, 145 N.J. at 473. The strength of the State's case, independent of the other-crime evidence, should be considered in determining prejudice to the defendant. State v. Marrero, supra, 148 N.J. at 497.

State v. Krivacska, supra, is very similar to the present case. The defendant was charged with sexually abusing two children, and the judge gave the jury the same instruction that was given here. We said in Krivacska that the judge's instruction did not meet the required standard. Id. at 42. The charge "did not specifically tell the jury that it could not consider the other-crime evidence to determine that the defendant was predisposed to commit the crimes charged. Nor did the instruction narrowly focus the jury's attention on the specific use of the other-crime evidence." Ibid.

We found, however, that the deficiency in the charge did not require a reversal of the conviction. The defendant had not requested any limiting instruction. We pointed out that "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." Ibid. See also State v. Marrero, supra, 148 N.J. at 496 (courts are generally reluctant to reverse on the grounds of plain error when no objection to a charge has been made.)

We concluded in Krivacska that the "thrust" of the instruction was that the jury should consider separately each offense charged. Id. at 43. We held that the deficiency in the charge was not "clearly capable of producing an unjust result," and, therefore, should be disregarded. See R. 2:10-2.

We have made a fact sensitive analysis in this case and conclude that the deficiency in the charge was not clearly capable of producing an unjust result. The judge addressed each offense charged and gave lengthy instructions on their elements. As in Krivacska, the thrust of the judge's charge was that the jury should consider each offense separately.

The prosecutor's brief comment about the two victims and their testimony does not alter our conclusion that the jury understood the Judge's charge. Our conclusion is fortified by the fact that on two counts the jury convicted the defendant of only the lesser included offenses. This indicates that the jury understood and followed the judge's instructions to consider each offense separately.

Furthermore, here, as in Krivacska, supra, the defendant neither objected to the judge's charge nor requested that a specific charge be given.

Moreover, the evidence of the defendant's guilt was strong without regard to the other-crime testimony. The testimony of the victims was supported by the expert's physical findings. The possibility of an injustice in the present case is clearly insufficient to raise a reasonable doubt as to whether the deficiency in the charge led the jury to a result it otherwise might not have reached. State v. G.S., supra, 145 N.J. at 473. The defendant has not demonstrated that under the facts in this case the deficiency in the charge possessed a clear capacity for producing an unjust result. See State v. Williams, 168 N.J. 323, 335-336 (2001) and R. 2:10-2.

III

The defendant argues that the expert should not have been allowed to testify that her findings on the physical examination were consistent with N.B and A.B's reports of sexual abuse, and that neither girl had reported prior oral or rectal involvement. Defendant also argues that the prejudice from this testimony was enhanced by the prosecutor's comments in summation. Defense counsel unsuccessfully objected at trial to the testimony about no prior oral or rectal involvement.

An expert may not express a direct opinion that a defendant is guilty of the crime charged. State v. Odom, 116 N.J. 65, 77 (1989). However, medical witnesses in cases of sexual abuse of children are allowed to "offer opinions as to the cause of any injuries, to establish penetration, and to answer questions whether injuries could have been inflicted in a particular way or whether a caretaker's explanation for an injury is reasonable." State v. J.Q., 130 N.J. 554, 563 (1993).

An expert may also set forth the facts or data on which the expert's opinion is based. N.J.R.E. 703. Further, "if of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Ibid.

Appellate review of a trial judge's determinations as to the admissibility of evidence is "deferential and limited to whether there has been an abuse of discretion." State v. Fortin, 178 N.J. 540, 591 (2004).

We find no abuse of discretion here. The expert did not express an opinion as to the guilt of the defendant. The expert's testimony that her findings were consistent with the girls' report of sexual abuse was admissible as support for the expert's conclusions regarding the cause of the hymen tears. See State v.J.Q., supra, 130 N.J. at 554, and N.J.E.R. 703. The same is true regarding the testimony about the expert's report of no prior oral or rectal involvement. In any event, we find that the testimony was not clearly capable of producing an unjust result, and, therefore, must be disregarded on appeal. See R. 2:10-2.

IV

The judge applied the NERA parole ineligibility period to the sentence of 17 years on merged counts one and two and also to the consecutive sentence of 17 years on count nine. The defendant contends that a NERA sentence cannot be imposed under the facts here. We agree.

In count one of the indictment the defendant is charged with aggravated sexual assault on N.B. by vaginal intercourse on diverse dates between on or about September 1, 1997 and December 13, 2001.

In count two of the indictment the defendant is charged with aggravated sexual assault on N.B. by penetration of her vagina with his finger on diverse dates between September 1, 1997 and December 13, 2001.

In count nine the defendant is charged with aggravated sexual assault on A.B. by vaginal intercourse on diverse dates between June 22, 1999 and June 10, 2002.

NERA prior to its amendment in 2001, provided that the court in imposing a prison term for a first or second degree crime shall "fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section. . . . " (emphasis added). N.J.S.A. 2C:43-7.2

Subsection d. provided:

d. For the purposes of this section, "violent crime"

means any crime in which the actor causes death,

causes serious bodily injury as defined in subsection

b. of N.J.S.2C:11-1, or uses or threatens the

immediate use of a deadly weapon. "Violent crime"

also includes any aggravated sexual assault or

sexual assault in which the actor uses, or threatens

the immediate use of, physical force. . . . (emphasis added).

[N.J.S.A. 2C:43-7.2].

Thus for NERA to apply in the present case to the sexual assaults prior to the 2001 amendment of NERA, the defendant must have used physical force, or threatened the immediate use of physical force. See State v. Johnson, 166 N.J. 523, 544 (2001). In the 2001 amendment, the Legislature eliminated the physical force requirement and specifically enumerated the first and second degree offenses to which NERA would apply. These offenses include aggravated sexual assault (N.J.S.A. 2C:14-2(a) and some sexual assaults (N.J.S.A. 2C:14-2(b)). See State v. Parolin, 171 N.J. 223, 233 (2002).

Thus for NERA to apply to aggravated sexual assaults committed after June 29, 2001 (the effective date of the NERA amendment), the aggravated sexual assaults need not be accompanied by physical force or the threat of immediate use of physical force.

In both before and after cases, the jury, not the judge, must make the factual findings required for a NERA sentence, and the jury must make the findings beyond a reasonable doubt. State v. Johnson, supra.

R. 3:19-1(b) provides that when, as here, the jury must make a factual predicate for an enhanced sentence, a written verdict sheet shall be submitted to the jury on that subject. The jury should also be instructed on the matter. See State v. Johnson, supra, 166 N.J. at 544 and the Model Criminal Jury Charge approved June 19, 2001.

Notwithstanding these requirements, the verdict sheet in this case did not have any specific questions as to the factual predicates for a NERA sentence, nor did the judge charge the jury on the matter.

The State argues that even though these requirements were not met, we should conclude from the evidence and the jury verdict that the jury must have impliedly made the requisite NERA findings, namely, that the defendant used physical force or threatened the immediate use of physical force, or that at least one of the sexual assaults occurred after NERA had been amended.

The State relies on State v. Johnson, supra. In that case the defendant was convicted of first degree robbery. The issue for NERA purposes was whether the defendant threatened the victim with a deadly weapon. The trial judge "failed to specifically instruct the jury to find the NERA violent crime predicate. . . . "

The Court upheld the NERA sentence. The Court said that the "only conceivable conclusion" from the "uncontradicted" evidence was that the defendant had threatened the victim with a deadly weapon. State v. Johnson, supra, 166 N.J. at 546. The Court affirmed the defendant's NERA sentence "because the facts adduced at trial establish that the jury made the finding beyond a reasonable doubt." Ibid.

A different result was reached in State v. Natale, supra,

(Natale I), 348 N.J. Super. 625, 630 (App. Div.), aff'd. 178 N.J. 51 (2003). In that case the jury instructions did not "dovetail" with NERA, and the jury did not expressly make the requisite NERA factual finding. We said that we were not satisfied that the jury verdict reflected a jury finding of the NERA factual predicate beyond a reasonable doubt. Id. at 630.

In the present case we are also not satisfied that the jury impliedly found beyond a reasonable doubt a factual predicate for a NERA sentence. If the jury had found that the defendant told the children they either had to have sex with him or be smothered, we would have no reservation in concluding that this finding met the factual predicate of a threat of the immediate use of physical force. However, the jury did not so specifically find.

The jury was asked whether the defendant was guilty of endangering the welfare of the children by smothering them to the point of unconsciousness. The jury found the defendant guilty, although the jury also found that the children did not sustain serious bodily injury. The jury was not asked, however, whether the defendant used the threat of smothering in order to get the children's consent to have sex with him. The jury was not required to make such a factual finding in order to determine that the defendant was guilty of endangering the welfare of the children. Consequently, we cannot conclude that this factual finding was necessarily implied in the verdict of guilty on the endangering charges.

Similarly, the jury was not required to make that factual finding in order to return a verdict of guilty on the aggravated sexual assault charges. The relevant elements of those charges were the age of the victims and their blood relationship to the defendant, not physical force or the threat of immediate use of physical force. See State v. Thomas, 166 N.J. 560, 563 (2001) (where none of the NERA factors is an element of the offense charged, there must be additional proof of a NERA factor before there can be sentence enhancement under NERA).

In short, we cannot conclude that the "only conceivable conclusion," see State v. Johnson, supra, 166 N.J. at 546, the jury could have reached from the disputed evidence beyond a reasonable doubt, was that the defendant used physical force or the threat of immediate use of physical force in order to obtain sex with his children.

The State argues that some of the aggravated sexual assault offenses "logically" occurred after the June 29, 2001 amendment of NERA, and hence a NERA sentence is warranted for those offenses.

The jury, however, was never asked whether any of the aggravated sexual assaults took place after June 29, 2001. The jury was asked by way of the verdict sheet whether the defendant had committed aggravated sexual assaults on his children between September 1, 1997 and December 13, 2001 (counts one and two), and between June 22, 1999 and June 10, 2002 (count nine). The jury could have believed that the sexual assaults all occurred before June 29, 2001 and still answered those questions in the affirmative. Hence, the jury did not have to accept the children's testimony to the contrary in order to find the defendant guilty of the aggravated sexual assault charges.

Thus, whether the sexual assaults occurred after or before June 29, 2001, was not something the jury necessarily considered. A NERA sentence can certainly not be imposed when the jury may not have even considered the factual predicate for a NERA sentence.

We are mindful that these victims who have been so sordidly and grievously harmed by their father may now have to undergo another trial. Nevertheless, we are constrained by legal precedent from upholding a sentence based on findings which can only constitutionally be made by a jury beyond a reasonable doubt when we cannot conclude that the jury made those findings or even considered them.

We are, therefore, obliged to reverse the NERA sentence. In accordance with the Supreme Court decision in Natale, supra, 178 N.J. at 54 (Natale I), the State has the right to proceed to trial on the factual predicate or to have the defendant resentenced without a NERA parole disqualifier.

V

We conclude, without objection by the State, that the defendant is entitled to a new sentence hearing. This is because the judge imposed some sentences above the presumptive statutory term based on aggravating factors other than the defendant's criminal record. See State v. Natale, supra, 184 N.J. at 466 (Natale II) ("[a] sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee."); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); See also Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); and State v. Abdullah, 184 N.J. 497 (2005). In view of the resentencing, we need not reach the issues raised by the defendant as to his present sentence.

We affirm the convictions and remand for further proceedings in accordance with this opinion.

 

(continued)

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18

A-6580-03T4

RECORD IMPOUNDED

June 16, 2006