STATE OF NEW JERSEY v. R.F

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1604-07T41604-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.F.,

Defendant-Appellant.

 

Submitted March 17, 2009 - Decided

 
Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 06-02-0191-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On February 1, 2006, a Bergen County Grand Jury indicted defendant, R.F., charging him with multiple counts of aggravated sexual assault against his daughter, A.G., born in May 1988. The indictment charged defendant with two counts of first-degree aggravated sexual assault in the City of Hackensack between July 1, 2003 and July 31, 2003, N.J.S.A. 2C:14-2a(2)(a) (counts one and two); two counts of first-degree aggravated sexual assault in the Township of River Vale between December 1, 1999 and December 30, 2003, N.J.S.A. 2C:14-2a(2)(a) (counts three and four); and one count of second-degree sexual contact by impairing or debauching the morals of a child in the City of Hackensack and/or the Township of River Vale between December 1, 1999 and July 31, 2003, N.J.S.A. 2C:24-4a (count five).

Following a trial, a jury convicted defendant of all counts. The court merged count five into count one, and imposed two consecutive sixteen-year prison terms, on counts one and two, each with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and two concurrent sixteen-year prison terms, subject to similar periods of parole ineligibility, on counts three and four. Defendant is subject to Megan's Law, with parole supervision for life. N.J.S.A. 2C:7-1 to -19.

On appeal, defendant raises the following legal arguments:

POINT I - THE TRIAL COURT COMMITTED HARMFUL ERROR BY MISAPPLYING THE DOCTRINE OF RES GESTAE TO THE ALLEGED ACTS COMMITED BY THE DEFENDANT IN JAMAICA AND IN PATERSON BECAUSE THESE ALLEGED ACTS CONSTITUTED OTHER CRIMES EVIDENCE.

POINT II - THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE DEFENDANT'S PURPORTED OUT-OF-COURT STATEMENT, "K.F. DOES IT ALL THE TIME," AS A DECLARATION AGAINST INTEREST.

POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).

POINT IV - THE PROSECUTOR VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT UNDER THE FIFTH AMENDMENT AND THE DEFENDANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT BY INTENTIONALLY ELICITING TESTIMONY FROM A.G. ALLEGING A CRIMINAL ACT BY THE DEFENDANT THAT WAS NOT DISCLOSED IN PRETRIAL DISCOVERY.

POINT V - COMMENTS MADE TO THE JURY BY THE TRIAL COURT AFTER THE DEFENSE RESTED PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT VI - THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S RIGHTS UNDER THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT BY PRECLUDING THE DEFENSE FROM ADMITTING EVIDENCE THAT THE DEFENDANT STATED, "I DON'T KNOW WHAT YOU'RE TALKING ABOUT," WHEN A.G. ATTEMPTED TO ENSNARE THE DEFENDANT.

POINT VII - IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 32 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.

In light of the record and prevailing law, we conclude that the admission of other crimes evidence without an appropriate jury instruction as to the use of that evidence, in addition to remarks by the prosecutor that constituted misconduct, individually and cumulatively prejudiced the fairness of defendant's trial, casting doubt on the propriety of the jury verdict. Consequently, we are constrained to set aside the verdict and remand for a new trial.

I Pretrial Motions

Over two days, the court addressed pretrial motions. Defendant moved to bar references to uncharged crimes or other bad acts, both within and outside the time period covered by the indictment; and to bar reference to A.G. contracting a sexually transmitted disease (STD).

During the first day of pretrial motions, the court permitted testimony of alleged sexual assaults by defendant against A.G. within the time period covered by the indictment; two in Jamaica, and one in the back of a car in defendant's auto body shop in Paterson, even though those crimes were not charged in the indictment. The court granted defendant's motion to bar other alleged sexual assaults that took place outside the time period covered by the indictment. The court gave the following reasons for its rulings:

I've had an opportunity to hear oral argument as to the testimony as to events that occurred in Paterson and maybe while on vacation in the islands.

The argument is that these occurred between 1999 and 2003 within the dates governed by the indictment.

Defense counsel argues that they are separate crimes and should not be part of the res gestae.

I'm going to permit testimony as to these acts that occurred as long as they occurred between the dates of 1999 and 2003 set forth in the indictment. Had they been incidents that occurred either before 1999 or after 2003 they clearly would be separate crimes but if they occurred . . . during the time frame that's in the indictment I will permit testimony as part of the res gestae.

The defense sought to bar A.G.'s testimony that her father told her that he also had sexual relations with K.F., another of defendant's daughters and A.G.'s half-sister. Defense counsel informed the court that K.F. had made a statement to the police denying that she was ever sexually abused by her father. The court denied defendant's motion, permitting the testimony based on N.J.R.E. 803(c)(25), a statement against interest.

On the second day of pretrial motions, the judge denied defendant's request to use a tape recording of a conversation he had had with the victim. During the call, which the prosecutor's office monitored, A.G. told defendant that she had contracted an STD, and because he was the only person with whom she had sexual contact, he should seek medical attention. Defendant denied knowing what A.G. was talking about. The court concluded that the recording was hearsay and did not permit it into evidence.

II The Trial Evidence

A.G. was the only witness who testified at trial. Defendant and A.G.'s mother separated when A.G. was approximately a year old. Defendant subsequently married, and had several children, including K.F. A.G. visited defendant three or four times a month, and became friends with K.F., who was close in age to A.G.

When A.G. was seven or eight years old, defendant began to touch her breasts and vagina, and had her touch his penis. When she was eleven or twelve years old, defendant began to have sexual intercourse with her. She testified that defendant often had intercourse with her, but she could only recall the details of six specific occasions when defendant inserted his penis into her vagina. On two of these occasions, defendant also induced her to perform oral sex on him, and on another occasion, defendant performed oral sex on her.

During the first day of A.G.'s testimony, the prosecutor asked her what, if anything, her father said to her to encourage her to participate in sexual relations with him. She responded: "Like I said he was like, 'Take it. Stop being a baby. It doesn't hurt that bad. It's not that bad.' And he was saying how my sister [K.F.] does it all the time and that there's nothing wrong."

Defense counsel objected and requested a mistrial, arguing that no instruction could cure the substantial prejudice. The prosecutor asked for a limiting instruction. The judge denied the motion for a mistrial, and stated that he was not going to instruct the jury "at this point." The judge adjourned the trial for the day.

At the beginning of the next trial day, the court again heard argument from the parties as to the admissibility of the statement as well as the need for a limiting instruction. The court then instructed the jury as follows:

Just before we broke yesterday you heard testimony from the witness, [A.G.], that during one of the alleged sexual assault[s] by her father he made certain statements to her relating to [K.F.]. During that described incident[,] the defendant is alleged to have said to [A.G.] that [K.F.] does this and it's no big deal and [K.F.] does it all the time.

Now, your recollection of what was said may be different from my recollection as to what was said. And guess what? You're the judges of the facts. You have to decide what was said in your recollection when you're deliberating. It's not my recollection, it's your recollection individually and collectively that will govern the testimony.

Now, that testimony, there was an objection and I overruled the objection. That testimony was admitted for a very limited purpose. It was not introduced to show that the defendant is predisposed to commit a particular crime and may not be used for that purpose. Likewise it was not introduced to show the defendant ever committed or was even charged with any act alleged. It may not be used for that purpose. The defendant denies committing another act of aggravated assault upon anyone. Instead the testimony was permitted merely to establish the context of the event, to explain the nature of the event and to present a more complete picture to you, the jury, of the alleged crime in this particular case that we're hearing in this courtroom.

You're permitted to consider the time, place and circumstances of the acts as alleged by the State which form the basis of the charges. Again I want it to be very clear the testimony relating to the alleged statements by the defendant, [A.G.], relating to [K.F.], was introduced as part of alleged conduct that occurred during the incident in question. This testimony was admitted only for a very limited purpose, to explain [A.G.'s] conduct during and after the alleged sexual assault. Also to explain what impact, if any, those statements may have had upon her actions.

I'm instructing you as the jury that you cannot use this information for any other purpose than for which it has been offered and permitted by this Court.

After the instruction, A.G. continued her direct testimony. Later, the prosecutor revisited the same issue. Referring to an incident that occurred in River Vale in which A.G. alleged that defendant gestured to her to perform oral sex on him, the prosecutor asked her to describe what happened. She answered:

he sort of gestured that I should perform oral sex on him and I really didn't, you know, want to. I didn't really want to but then that's when he was like, you know, it's no big deal. Stop being a baby. And that's when he also said again that . . .

[Defense counsel]: Objection, Judge.

[Prosecutor]: It's the same response.

THE COURT: Same ruling. Overrule the objection.

Q. What did your father say to you at that time?

A. That [K.F.] does it all the time.

Several minutes later, the prosecutor asked A.G. to read from a statement she gave to the police on January 13, 2005. She responded:

"I remember saying ouch, ouch, and I kept moving back, and he was like oh stop being a baby about it. It's not some serious stuff. [K.F.] does this all the time and she's very cooperative."

Q. And having read that do you recall making those statements to the detective on January 13th?

A. Yes.

Q. And as you sit here today is that what your father said to you on this night in question?

A. Yes.

After that exchange, the court provided the jury with the following additional instruction:

Again, ladies and gentlemen I'm going to read to you from my notes so it's essentially the same so you understand that we've just heard testimony from [A.G.] that during one of the alleged sexual assaults made by her father he made certain statements relating to [K.F.].

During that described incident the defendant is alleged to have said that [K.F.] does this all the time. It's not so serious.

That's what my recollection is. It's not my recollection. It's your recollection individually and collectively that governs.

This testimony, over objection of defense counsel, was admitted for a very limited purpose. It was not introduced to show the defendant is predisposed to commit a particular crime and it may not be used for that purpose. Likewise, it was not introduced to show the defendant ever committed or was even charged with any act alleged. It may not be used for that purpose.

The defendant denies committing any act of aggravated assault upon anyone. Instead the testimony was permitted merely to establish the context of the event, to explain the nature of the event and to present a more complete picture to you, the jury, of the alleged crime in this case.

You are permitted to consider the time, place and circumstances of the acts as alleged by the State which form a basis of these charges.

Again[,] I want it to be very clear, testimony relating to the alleged statements by the defendant to [A.G.] relating to [K.F.] was introduced as part of the alleged conduct that occurred during the incident in question. This testimony was admitted only for a very limited purpose, to explain [A.G.'s] conduct during and after the alleged sexual assault, and also to explain what impact if any those statements may have had upon her actions.

I am instructing you, the jury, that you cannot use this information for any other purpose than for which it has been offered and permitted by this Court.

A.G. testified that over the course of their sexual relationship, defendant only used a condom once. At first, she did not realize the gravity of the sexual relationship that defendant fostered upon her, and she did not tell anyone. She trusted defendant because he was her father. After A.G. came to realize that what her father did was wrong, she did not tell her mother, who suffered from depression, for fear of upsetting her. A.G. confided first in K.F. about her father's conduct. A.G. then told two high school friends about the abuse. Also during high school, A.G. began experiencing symptoms of an STD. She then told a teacher that her father had been abusing her and she suspected she had an STD. The teacher alerted the school social worker, convinced A.G. to tell her mother, and reported the abuse to the Division of Youth and Family Services (DYFS).

III

We begin our discussion with defendant's argument that the admission of other crimes evidence denied him a fair trial. We will not interfere with a trial court's evidentiary determinations in the absence of a mistaken exercise of discretion. State v. Schnabel, 196 N.J. 116, 131 (2008).

N.J.R.E. 404(b) governs the admissibility of other crimes evidence. That rule states:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b).]

"The [r]ule seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." State v. Barden, 195 N.J. 375, 388 (2008).

Other crimes evidence offered to prove criminal disposition is not permitted under the rule. State v. Stevens, 115 N.J. 289, 300 (1989). In State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court established a test to determine the admissibility of other crimes evidence under N.J.R.E. 404(b):

(1) The evidence of the other crime must be admissible as relevant to a material issue;

(2) It must be similar in kind and reasonably close in time to the offense charged;

(3) The evidence of the other crime must be clear and convincing; and

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[(internal quotation omitted).]

If a court permits a jury to hear other crimes evidence, "the court must instruct the jury on the limited use of the evidence." Id. at 340-41. "Because of the inherently prejudicial nature of other crime evidence, the court's instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. G.V., 162 N.J. 252, 258 (2000) (internal quotations omitted). "The instruction should be given when the evidence is presented and in the final charge to the jury." Barden, supra, 195 N.J. at 390.

Here, the allegations of sexual assault not charged in the indictment constituted other crimes evidence under N.J.R.E. 404(b). Nevertheless, without conducting the four-part Cofield test to guide its determination of whether the evidence should be admitted, the court permitted evidence of defendant's uncharged sexual assaults against A.G. under the doctrine of res gestae.

The res gestae concept is codified at N.J.R.E. 803(c)(3). State v. Long, 173 N.J. 138, 153 (2002). It is "referred to as the state of mind exception, [and] covers 'statement[s] made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition.'" Ibid. (quoting N.J.R.E. 803(c)(3)). The concept "has been used to admit a wide variety of evidence in both the criminal and civil context[s]." Ibid.

While the res gestae exception has been characterized as a shorthand reference to the principles contained in [at least] two exceptions to the rule excluding hearsay evidence pertaining to spontaneous and contemporaneous statements, and pertaining to statements of physical or mental condition of declarant and related history, . . . the exception historically applied to more than just excited utterances under Rule 803(c)(2) or present sense impressions under Rule 803(c)(1).

[Id. at 154 (internal quotation omitted).]

Res gestae evidence is considered reliable based on its surrounding circumstances. Ibid. "[A] person's own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and involving no suggestion of sinister or improper motives, reflect his mental state and are competent to prove the condition of his mind that is, his plan or design." Id. at 154-55 (quotation omitted). Nevertheless, the res gestae exception has been criticized and discredited as an independent basis for the admission of otherwise inadmissible evidence. Id. at 170; see also Barden, supra, 195 N.J. at 395 (same).

Here, we need not address whether res gestae "should remain a viable concept in our jurisprudence." Barden, supra, 195 N.J. at 396. The admission of the other crimes evidence, that defendant sexually assaulted A.G. in Jamaica and in Paterson, was a mistaken exercise of discretion. The trial court did not conduct an N.J.R.E. 104 hearing to determine if the Cofield test had been met as to the Jamaica and Paterson sexual assaults. Based on our independent review of those factors, we conclude that the State failed to satisfy the fourth prong of the test. See Barden, supra, 195 N.J. at 391 (when trial court fails to conduct Cofield analysis, appellate court may do so).

As the Supreme Court recently explained,

The fourth prong, whether the probative value of the evidence is outweighed by its apparent prejudice, is generally the most difficult part of the test. Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice. . . . In the weighing process, the court should also consider the availability of other evidence that can be used to prove the same point.

[Barden, supra, 195 N.J. at 389 (quotations omitted).]

Here, in his opening and closing remarks to the jury, the prosecutor explained the purpose of testimony concerning the Jamaica and Paterson incidents. In his opening, the prosecutor explained that those incidents were "relevant . . . because [they] explain[] the context of [defendant's and A.G.'s] relationship and the times that she [could] remember." In his closing, the prosecutor again mentioned the Jamaica and Paterson assaults, reminding the jury that those sexual assaults were offered "as part of the totality of this whole case." The judge accepted substantially those same arguments as a basis to permit the testimony under the res gestae theory. The judge abused his discretion in doing so.

The probative value of the evidence was outweighed by its potential for undue prejudice. The record contained more than enough evidence without reference to the Jamaica or Paterson assaults to show the ongoing nature of defendant's sexual assaults and how defendant "groomed" A.G. to accept his sexual assaults as normal behavior. A.G. testified that when she was approximately eight years old, defendant began to touch her inappropriately when no one else was around. At his urging, she touched his penis. She explained to the jury that because defendant was her father, she "just did what [she] was told."

She further testified that when she was eleven or twelve years old, defendant began engaging in acts of sexual penetration. A.W. described specific instances of defendant's alleged criminal conduct besides the Jamaica and Paterson incidents. She further testified that her father told her not to tell anyone, that "some things are just left between fathers and daughters"; that he was "educating" her in life.

Put succinctly, the record contained extensive evidence of defendant's sexual assaults against A.G. The additional uncharged allegations of sexual assault added little to the State's case, and did not outweigh the prejudice inherent in permitting the jury to hear about the other crimes, which effectively established defendant's criminal disposition to commit the offenses.

What is more, the court's limiting instruction as to the use of this evidence was incomplete, belated, and not sufficient to eliminate the potential undue prejudice to defendant. The discovery the State provided to defendant contained allegations of one sexual assault in Jamaica, which allegedly took place at A.G.'s aunt's house. During the pretrial proceedings, the court ruled that that incident would be admissible. Yet, at no time during the trial did the court instruct the jury what use to make or not make of that evidence.

When A.G. began to testify about a second incident in Jamaica, which allegedly occurred in the ocean, defendant objected and moved for a mistrial. The State acknowledged that the incident was not included in discovery, but the court nevertheless denied defendant's application for a mistrial. Instead, the court struck the testimony as to the incident in the ocean, and sent the jury to lunch. Following the lunch break, the court instructed the jury that it was sustaining the defense objection, and provided the following instruction:

I am going to sustain defense[']s objection. We did hear something about an incident that occurred in the ocean. I'm going to tell the jurors to disregard that testimony.

Now, how do we disregard something we've already heard? Very simple. It's like adding a column of random numbers. We have a column of random individual single digit numbers. We want to add that column and I say disregard the number three in that addition. Whenever we get to the number three we're not going to include it.

So if this comes up you can remember it and remember not to consider it in your deliberations in the jury room. Very simple.

The court's limiting instruction was belated because it was not given until after the jurors' return from lunch, giving the jurors time to consider the testimony without the benefit of the court's instruction. An immediate and specific curative instruction is necessary to "alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial." State v. Valejo, ___ N.J. ___, ___ (2009) (slip op. at 18).

Further, the instruction was confusing and insufficient. The court did not "explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Stevens, supra, 115 N.J. at 304; see also Barden, supra, 195 N.J. at 394 (instruction must "focus the jury precisely on the permissible uses of the other crime evidence in the context of the facts of this case and those issues genuinely in dispute") (quoting State v. Hernandez, 170 N.J. 106, 132 (2001)).

Even more significantly, the court did not provide the jury with an instruction as to the use of the testimony with regard to the first incident in Jamaica, at A.G.'s aunt's house, or with regard to A.G.'s subsequent testimony that defendant sexually assaulted her in Paterson in the back of a car. That the events may have been admissible under a theory of res gestae did not eliminate the need for a limiting instruction for events that also constituted other bad acts under N.J.R.E. 404(b).

Consequently, as a result of the admission of other crimes evidence that did not outweigh its inherent undue prejudice, along with the court's failure to provide the jury with immediate and specific limiting instructions as to how to use the other crimes evidence, defendant was denied a fair trial. See Valejo, supra, ___ N.J. at ___ (slip op. at 18) (given absence of appropriate limiting instruction, "defendant was denied the fair trial to which all defendants, regardless of the strength of the case against them, are entitled").

We reach the same conclusion as to the other crimes evidence involving defendant's statement to A.G. that he had sexual relations with K.F. The court ruled that the evidence was admissible as a declaration against defendant's interest. N.J.R.E. 803(c)(5). On appeal, the State argues that the statement was also admissible as a statement by a party opponent. N.J.R.E. 803(b)(1). In either event, however, it nevertheless constituted other crimes evidence under N.J.R.E. 404(b). And here too, the court failed to conduct an appropriate Cofield analysis. As defendant points out in his brief, "Since the [State's entire] case rested on the credibility of a single witness, admission of the evidence had the capacity to bring about an unjust result because it substantially enhanced A.G.'s credibility and improper[ly] focused the jury's attention on the defendant's propensity to commit criminal acts of aggravated sexual assault."

The State offered A.G.'s testimony that her father told her he also had sexual relations with her sister in an effort to establish how defendant psychologically broke down A.G.'s defenses in an attempt to "normalize" his conduct. The State offered the testimony to help the jury understand how defendant "groomed" A.G. into believing that defendant's sexual conduct was natural and she should not refuse his advances.

The State's reasons do not survive a Cofield analysis. K.F. had, in a statement to the police, denied that defendant ever sexually assaulted her. The third prong of the Cofield test requires that other crimes evidence be proved by clear and convincing evidence. G.V., supra, 162 N.J. at 275. The State did not meet that burden. The evidence of the other crime was not clear and convincing as admissibility requires.

The State also failed to meet the fourth prong of the Cofield test, that the prejudicial effect of the evidence not outweigh its probative value. The judge failed to weigh the probative value against what was clearly devastating evidence against defendant. The record was already replete with testimony by A.G. of her father's criminal sexual conduct. The testimony that her father told her that he also engaged in sexual relations with her sister was purely propensity evidence, implying to the jury that because defendant sexually assaulted K.F., he also must have been guilty of the crimes charged in this case. As Justice Long stated in her dissent in G.V., supra, "this is exactly what N.J.R.E. 404(b) was meant to prohibit." 162 N.J. at 266.

Although the judge provided limiting instructions to the jury as to that testimony, those instructions were insufficient. In its first instruction, the court told the jury that the evidence could not be used to show that defendant was predisposed to commit a particular crime, but could be used "merely to establish the context of the event, to explain the nature of the event and to present a more complete picture to . . . the jury, of the alleged crime in this particular case." The court added that the testimony "was admitted only for a very limited purpose, to explain [A.G.'s] conduct during and after the alleged sexual assault, and also to explain what impact if any those statements may have had upon her actions." In a second instruction, the court substantially repeated the first limiting instruction.

These instructions did not provide the jury with factual context sufficient to enable the jury to appreciate "the fine distinction to which it [was] required to adhere." Stevens, supra, 115 N.J. at 304. Telling the jury that the evidence could be used "merely to establish the context of the event, to explain the nature of the event and to present a more complete picture . . . of the alleged crime" did not, in any sense, help the jury understand to what use the evidence could be made.

Furthermore, although the court told the jury that the statement "was not introduced to show the defendant ever committed or was even charged with any act alleged," and that the "testimony was admitted only for a very limited purpose, to explain [A.G.'s] conduct during and after the alleged sexual assault, and also to explain what impact if any those statements may have had upon her actions," the instruction was confusing. The instruction did not say to what conduct of A.G.'s the court was referring. Whether A.G. consented to sexual relations with her father was not at issue. If the conduct was A.G.'s failure to report her father's assaults sooner, the court needed to explain that to the jury. If, as the State argues in its brief, the testimony was offered to show that it was defendant's plan to "groom" A.G. into being compliant with his wishes, the court needed to explain to the jury how the testimony impacted that position. If the evidence was admitted to show proof of "opportunity, intent . . . [or] plan," N.J.R.E. 404(b), the court was required to explain to the jury how it could use the evidence in the factual context of the case. As given, the instruction left the jury to speculate whether defendant did, in fact, sexually assault K.F. as well as A.G.

"Other crimes evidence is considered highly prejudicial." Valejo, supra, ___ N.J. at ___ (slip op. at 15) (citing Stevens, supra, 115 N.J. at 309). "The risk involved with such evidence is 'that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.'" Ibid. (quoting State v. G.S., 145 N.J. 460, 468 (1996)). The State's entire case rested upon the testimony of A.G. For the jury to hear that defendant had sexually assaulted A.G.'s sister, as well as A.G., was harmful error. In the absence of a clear and precise jury instruction as to what use it could make of the evidence, a reasonable doubt exists as to whether the evidence "led the jury to a result it otherwise might not have reached." State v. Hightower, 120 N.J. 378, 410 (1990).

IV

We next turn to defendant's allegations of prosecutorial misconduct. As long as a prosecutor comments on the facts, or inferences to be reasonably inferred from the evidence, he or she is entitled to wide latitude in summation. State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). A prosecutor may not, however, comment "in either obvious or subtle fashion" as to the defendant's failure to testify or produce witnesses. State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002).

Here, defendant challenges the prosecutor's remarks in his summation that defendant claims were a direct attack upon his failure to testify. Those remarks were as follows:

Folks, you heard no evidence whatsoever to suggest that [defendant] was anywhere other than in [A.G.'s] house the night after that wedding. There is no evidence to suggest he was anyplace else than [A.G.'s] house that night of that wedding. [A.G.] told you and there's no reason to doubt that testimony. He was there and the question, ladies and gentlemen, is, why? Why?

When the prosecutor asked the jury why defendant was in A.G.'s house the night of one of the assaults, he suggested to the jury that if defendant had a reason for being there, he should have told it to the jury. This statement implied a failure by the defense to present evidence to answer that question. The State's remark raised "a danger that the jury would draw an improper inference from [defendant's] failure to take the stand." State v. Sinclair, 49 N.J. 525, 549 (1967).

The prosecutor made an additional improper comment on defendant's right to remain silent. In explaining to the jury that it could consider corroborative evidence, the prosecutor implied to the jury that defendant had subpoena power and other means to present evidence. The prosecutor said:

You'll hear instruction that you can consider corroborative evidence or evidence that discredits and you can weigh all that but you are not going to hear that the State of New Jersey is required to produce corroboration.

Now, obviously if we had a videotape, if we had DNA, well perhaps we wouldn't even be here, right. It might be a real easy case. I understand that.

But what you have is evidence that is recognized in every state and in most countries. You have testimony, sworn, under oath, in person, subject to cross examination by effective counsel who has been doing this for a number of years.

You have all the rights and privileges that every defendant is entitled to. You have all the powers, subpoena and everything else, available.

This argument essentially told the jury that defendant could have subpoenaed his own witnesses to produce evidence. It was an attack on defendant's right to remain silent.

Finally, as the prosecutor was arguing to the jury that it heard evidence that A.G. contracted an STD from defendant, he referred to A.G.'s testimony that defendant had been the only person with whom she had sexual relations. The prosecutor stated:

Is there proof he had [an STD]? No. Would I like to have [proof]? Absolutely. But when you disclose in December [2003] to February . . . 2004, remember, the last sexual act between them was a year and a half ago, in July of '03 -- all the evidence I would have loved to have had is gone.

The jury could have construed that argument to mean that there was additional evidence that defendant transmitted an STD to A.G., but the evidence was "gone." The record did not support that argument. There was no such evidence. As such, the prosecutor did not confine his comments to the evidence at trial. See State v. Smith, 167 N.J. 158, 178 (2001) (prosecutor "must confine . . . comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence"). Although, had that been an isolated remark we would likely conclude that it was harmless, when it is considered with the prosecutor's other inappropriate comments to the jury, we conclude that the cumulative effect of the prosecutor's remarks was "clearly capable of producing an unjust result." R. 2:10-2.

V

We next turn to defendant's argument that the court abused its discretion by barring a taped statement of a telephone conversation he had with A.G.. We reject this argument.

While investigating A.G.'s accusations against defendant, the prosecutor taped a telephone conversation between A.G. and defendant. During the call, A.G. told defendant that she had an STD, and because he was the only person with whom she had sexual contact, he should seek medical attention. Defendant responded by asking "[A.G.], what are you talking about?" Defendant sought to offer the recording of this conversation into evidence, and the court denied his motion, finding that the recording was hearsay that did not fall under any exception to the hearsay rule.

We agree. The hearsay defendant sought to admit was his own self-serving statement that was not corroborated by other evidence. The trial court properly exercised its discretion in excluding the recording.

VI

In sum, we conclude that the trial court erred by permitting other crimes evidence involving alleged sexual assaults in Jamaica and Paterson, as well as A.G.'s testimony that defendant told her that he had had sexual relations with his other daughter. We further conclude that the prosecutor committed misconduct in his summation. Even if the errors were not individually sufficient to warrant a reversal of defendant's conviction, the cumulative effect of these errors casts a sufficient doubt on the verdict to require reversal. See State v. Jenewicz, 193 N.J. 440, 472-74 (2008) (finding that cumulative impact of errors prejudiced fairness of defendant's trial, casting doubt on propriety of jury verdict). Although A.G.'s testimony was "powerful evidence" in support of the charges, "we must adhere to our constitutional obligation to ensure that defendant has received a fair trial." Id. at 474. Because "the entire case rested on the credibility of a single youthful witness, we believe that there was a clear capacity to bring about an unjust result by substantially enhancing the victim's credibility through" the use of other crimes evidence as well as the prosecutor's improper references to defendant's right to remain silent. State v. Schumann, supra, 218 N.J. Super. 501, 510 (App. Div. 1987), aff'd in part, rev'd in part, 111 N.J. 470 (1988). Consequently, we reverse defendant's conviction.

 
Reversed and remanded for further proceedings consistent with this opinion.

Whether the challenged testimony was a violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), as explained in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) has not been raised and in light of our decision to reverse defendant's conviction, we do not address it.

(continued)

(continued)

30

A-1604-07T4

RECORD IMPOUNDED

May 15, 2009