STATE OF NEW JERSEY v. T.A.J

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3694-07T43694-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

T.A.J.,

Defendant-Respondent.

________________________________________________________________

 

Argued November 10, 2008 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-02030.

Patricia B. Quelch, Assistant Prosecutor, argued the cause for appellant (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. Quelch, of counsel and on the brief).

Jonathan H. Lomurro argued the cause for respondent (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Lomurro, of counsel and on the brief).

PER CURIAM

After the jury found defendant guilty of three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, the trial court granted her motion for a new trial. By leave granted, the State appeals, arguing that the court mistakenly exercised its discretion by granting the new trial motion. We disagree with the State and affirm.

The indictment charged defendant with endangering the welfare of three of her children on July 14, 2005 "by causing [them] harm which would make [them] . . . abused or neglected child[ren]." We use fictitious names for the children, namely eight-year-old Isa, and six-year-old twins James and Jane. The State alleged that defendant became angry because the children ate cookies without permission and defendant beat the children with a belt. The next evening, through the intervention of the Division of Youth and Family Services (Division or DYFS), the children were taken to the Monmouth County Prosecutor's Office and interviewed by Detective Richard Chapman. Each child was interviewed separately, and the interviews were videotaped. All three children stated that their mother hit them with a belt because they ate the cookies.

In March 2006, the State moved pursuant to N.J.R.E. 404(b) to admit evidence of defendant's prior conviction for endangering the welfare of a child and the underlying facts supporting that conviction. Defendant had pled guilty to the prior charge, and admitted that she struck Isa in the face one time with a belt. She was sentenced to probation and placed under DYFS supervision. The court ruled on the motion on November 3, 2006. In doing so, the court noted that it had the State's brief but that defendant had filed no opposition. The court said "there is an allegation being made that [the] causes of these events were perhaps accidental in nature and that simply is an issue also." When the attorney representing defendant at that time was asked whether he had anything to add, he confirmed he had filed no brief, and said his "argument simply is based on the fourth prong [of the test set forth in State v. Cofield, 127 N.J. 328, 338 (1992) and] that even if the first three prongs are met, that this is extremely prejudicial." Because of the judge's apparent belief that the defense of accident or mistake would be advanced, which would satisfy the first Cofield prong (that the prior crime evidence is relevant to a material issue in dispute), he granted the State's motion.

Trial was held in December 2007. As the time for trial approached, it became clear that the children recanted their statements to Chapman, contending that they lied because they were angry at their mother for various reasons. The three children submitted to a videotape interview in the presence of defense counsel, a defense investigator, and the children's grandmother, in which they said their mother did not hit them. Jane wrote a letter to the judge saying that she lied. At trial, she testified that "[t]he reason why I lied on my mom was because we could not see her, and she never took us no where." And, Isa and Jane had been referred by their school, because of behavioral issues, for a psychiatric evaluation, which was conducted by Dr. Peter Ganine on February 28, 2006. This was unrelated to the charges against defendant. Both children denied to Dr. Ganine ever being abused or hit by their mother. Isa said she previously lied about it.

The prosecutor was furnished with all of this information prior to trial and was aware that the defense would be that defendant never struck the children with a belt and that the children had fabricated the story when they related it to Chapman on July 15, 2005.

A different attorney represented defendant at trial. At the commencement of trial, and again at various times during trial, he objected to the admission of the other crime evidence, insisting that the defense would not claim accident or mistake. The judge adhered to his pretrial ruling. In his opening statement to the jury, defense counsel outlined his general denial defense. He began his opening by telling the jury "it didn't happen."

When the other crime evidence was introduced at trial, and again in the final charge, the judge gave a carefully tailored limiting instruction regarding the prior crime evidence. In relevant part, he said:

However, our Rules of Evidence do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes. In this case, the prior incident has been admitted for the limited purpose to show that what allegedly happened on July 14th, 2005, was not a mistake or an accident. A prior incident can be used for this limited purpose and no other.

The defense takes the position that the children were not hit with a belt on July 14th, 2005. The State must prove beyond a reasonable doubt that [T.A.J.] hit one or more of her children with a belt on July 14th, 2005.

First, you must decide if [T.A.J.] used a belt on July 14th, 2005. And in making that decision you cannot use the prior conviction. If you use the prior conviction in making that decision, you will act contrary to my charge and violate your oath to decide this case fairly. It is only if you determine that [T.A.J.] hit one or more of the children with a belt, that you may resort to analyzing whether that prior conviction has any relevance to this case.

Whether this evidence does, in fact, demonstrate absence of mistake or accident, is for you to decide. You may decide that the evidence does not demonstrate the absence of mistake or accident, and is not helpful to you at all. In that case you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate the absence of mistake or accident, and use it for that specific purpose.

However, you may not use this evidence to decide that the defendant has a tendency to commit crimes, or that she is a bad person. That is, you may not decide that just because the defendant had committed a prior crime, she must be guilty of the present charges.

I have admitted the evidence only to help you decide the specific question of absence of mistake or accident. You may not consider it for any other purpose. You may not find the defendant guilty now simply because the State has offered evidence that she committed a prior crime.

[Emphasis added.]

The other crime evidence was admitted through the testimony of a Monmouth County Prosecutor's Office detective. She described that Isa exhibited a crescent-shaped injury under her eye on her cheek and said her mother hit her with a belt. Defendant admitted that she hit Isa with a belt. As a result, defendant was convicted and sentenced.

Each of the children was called by the State at trial and denied that defendant hit them. The videotape interviews by Chapman of all three children were then played for the jury. See N.J.R.E. 613(b) and N.J.R.E. 803(a)(1). We have viewed the recorded interviews. Isa said defendant whipped her with a belt. She said defendant hit her two times on the legs. She pointed to her thigh, indicating a mark made by the belt. When it was suggested to her that she had other marks, including on the sides of her torso, she said they were from other causes, suggesting that her bathing suit caused those marks. She also said defendant hit her younger brother and sister, James and Jane. When asked about marks on James' chest and back, Isa described them as "pee pee bumps," caused by his wetting the bed. James said defendant hit him on his legs because he and his sisters ate the cookies. He pointed to his right thigh and the side of his right lower leg. He also pointed to areas on his arms, chest, stomach and back which he said showed marks where his mother hit him with a belt. Jane said her mother whooped her on her legs. She said she had a bruise on her right thigh, but it went away. She said her mother hit her with the buckle of the belt (as opposed to the other two children who said defendant used the plain end). With respect to other bruising on her wrist and stomach, Jane said that came from fighting with her baby sister, who would punch her and grab her.

Defendant did not testify. Defense counsel began his summation the same way he began his opening statement, by telling the jury "it didn't happen." This was the defense throughout the trial. The defense never argued or suggested that defendant somehow accidentally, mistakenly, or negligently hit the children with a belt. However, the State insists that the issue of accident or mistake was in the case because of this limited testimony by Isa in response to the prosecutor's questioning:

Q She only stayed there at night? Did your mother ever hit you before?

A No.

Q Your mother never hit you?

A She only hit us (Inaudible). She hit us with her hand when she hit the bed.

Q She hit you with her hand when she hit the bed, huh?

A She tried to hit us, but she hit the bed.

Q Okay. Did you just say she hit you with her hand when she tried to hit the bed? Did you just say that?

A Yes.

Q Tell us about that.

A Was when we ate the cookies, and then she hit the bed, but she made a mistake and hit us. She tried to hit the bed.

Q She tried to hit the bed, and she made a mistake, and hit you?

A Yes.

Q And [James]?

A Yes.

Q How many times did she try to hit the bed, and make a mistake and hit you?

A She only hit the bed one time.

Q Right, and how many times did she miss the bed and hit you?

A Once.

Q And how many times did she miss and make a mistake, and hit [James]?

A None.

Q Who said anything about a belt?

A Nobody.

Q Why did you say belt?

A Thought she hit us with a belt?

Q Because you thought she hit you with a belt?

A Yes.

Q Did she ever hit you with a belt?

A No.

Q What about hitting you with a belt in the face?

A She did, but she kissed my eye.

Q And she knew that she kissed your eyes?

A Yes.

Q So she did hit you with a belt, but she kissed your eye afterwards?

A Yes, but she made a mistake.

Defendant moved for a new trial, arguing that the other crime evidence was not relevant to any material issue in dispute because there was no defense of an accidental or mistaken striking of the children with a belt, and because even if the prior crime evidence had any probative value, it was substantially outweighed by the resulting prejudice. The judge agreed and granted the motion.

Evidence of other crimes "is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). However, such evidence may be admitted for various limited purposes, including "absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. Our Supreme Court has set forth a four-prong test for evaluation of admissibility under this rule: (1) the evidence of the other crime must be relevant to a material issue; (2) it must be similar in kind and reasonably close in time to the offense charged; (3) the other crime evidence must be clear and convincing; and (4) the probative value of the other crime evidence must not be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.

In ruling on the new trial motion, the judge applied these principles, and found that the first and fourth prongs were not satisfied:

In this case the Court was under the initial impression that mistake or accident was going to be a genuine issue in this case. Defense counsel even gave the Court a voir dire question dealing with a prior incident. However, at trial there was no genuine issue raised as to whether mistake or accident was involved in this particular case.

Even though there may be a fleeting reference to hitting the bed by mistake, in the testimony it became clear in defense counsel's opening statement that the defense was simply saying that the defendant had not struck the children. The State's position was that defendant struck the children because they ate her cookies. There really was no issue that the beating was a mistake or an accident. Defendant either didn't hit the kids or she hit them because she was angry at them.

Therefore, it is the Court's position that despite the Court's very strong instruction on how to use 404(b) evidence, the Court should not have allowed the evidence of the prior beating to be used at all, and the State did not meet standard number one because there was no genuine issue that that evidence applied to.

That said, it is also obvious that standard number four was not met. All of the cases dealing with 404 evidence point out how prejudicial it has the potential to be. In this particular case, despite that evidence, it is hard for the Court to say that the prior incident where she has allegedly struck her kids with a belt would have been ignored in this case, when the issue was precisely the same and where the Court has found that there really was no legitimate 404(b) issue to allow the introduction of that particular testimony.

So, the Court will reverse the conviction in this particular matter.

A new trial may be granted in a criminal case "if required in the interest of justice." R. 3:20-1. We will not disturb a trial court's granting of a new trial unless the determination constituted a mistaken exercise of discretion. In the context here presented, our analysis is guided by the underlying broad discretionary authority of trial courts regarding the admission of other crime evidence. See State v. Marrero, 148 N.J. 469, 483 (1997). Absent a mistaken exercise of discretion by the trial court in its decision to admit or reject other crimes evidence, we will not interfere. State v. Lykes, 192 N.J. 519, 534 (2007).

The State's entire case rested on the proposition that defendant exercised excessive corporeal punishment by intentionally striking the children with a belt. The defense was a denial that defendant hit them at all. The emphasized portions of the limiting instruction we previously quoted reveal the lack of relevance of the prior crime evidence in this case. We repeat those portions here:

The defense takes the position that the children were not hit with a belt on July 14th, 2005. The State must prove beyond a reasonable doubt that [T.A.J.] hit one or more of her children with a belt on July 14th, 2005.

First, you must decide if [T.A.J.] used a belt on July 14th, 2005. . . . It is only if you determine that [T.A.J.] hit one or more of the children with a belt, that you may resort to analyzing whether that prior conviction has any relevance to this case.

The limited testimony that could be construed as relating to accident or mistake came from Isa. However, in that testimony, Isa did not say her mother hit her or the other children with a belt in the cookie incident. She said her mother mistakenly hit her with her hand, when her mother intended to hit the bed. This theory of the case was never advanced by the State. The State insisted that the marks made on the children came from a belt and that the belt was the instrumentality of the abuse allegedly inflicted.

Upon our careful review of the entire trial record, including the video statements of the three children, we find no mistaken exercise of discretion by the trial judge in concluding that the prior crime evidence was not relevant to a material issue genuinely in dispute, namely whether any alleged striking by defendant of her children with a belt was intentional or accidental. See State v. G.V., 162 N.J. 252, 261-65 (2000); State v. Stevens, 115 N.J. 289, 298-301 (1989); State v. Atkins, 78 N.J. 454, 462 (1979); State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990). As the trial judge aptly noted, this case was tried on the basis that defendant either hit the children with a belt out of anger or she did not hit them at all.

We further recognize the substantial prejudice attendant to the other crime evidence in this case. See State v. Mazowski, 337 N.J. Super. 274, 281-87 (App. Div. 2001). The judge did not err in concluding that the fourth Cofield prong was not satisfied.

Having presided over the trial and observed the testimony and demeanor of all witnesses, the trial judge was in the best position to evaluate the worth and impact of the disputed evidence. He acted within his discretion in concluding that the evidence should not have been admitted. Indeed, stripped of its relevance with respect to any material fact genuinely in dispute, the evidence, notwithstanding the clear limiting instruction, had the clear capacity to serve the prohibited purpose "to prove the disposition of a person in order to show that such person acted in conformity [with the prior conduct]." N.J.R.E. 404(b).

Affirmed.

(continued)

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A-3694-07T4

RECORD IMPOUNDED

November 21, 2008