STATE OF NEW JERSEY v. P.S.

(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NOT FOR PUBLICATION WITHOUT THE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-1607-07T41607-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.S.,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 9, 2009 - Decided

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0686.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Marisa Slaten, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was tried for three offenses committed against his stepdaughter, K.M. The charges arose out of three incidents that occurred between September 1999 and November 2001, when K.M., who was born on June 26, 1991, was nine or ten years old. The jury found defendant guilty of all three counts: (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); (2) second-degree sexual assault, N.J.S.A. 2C:14-2b; and (3) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The judge sentenced defendant on count one to twenty years imprisonment with a ten-year parole disqualifier. On count two, he sentenced defendant to a concurrent term of ten years imprisonment with a five-year parole disqualifier. On count three, the judge imposed a consecutive term of ten years imprisonment with a five-year parole disqualifier. The judge also sentenced defendant to community supervision for life and imposed appropriate mandatory monetary assessments.

On appeal, defendant argues:

POINT ONE

THE CHILD'S OUT-OF-COURT STATEMENT REGARDING ALLEGED SEXUAL ABUSE SHOULD HAVE BEEN HELD PER-SE INADMISSIBLE BECAUSE IT WAS NOT VIDEOTAPED. IN THE ALTERNATIVE, THE STATEMENT SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT WAS UNRELIABLE. (Partially Raised Below).

A. The Child Victim's Hearsay Statement Should be Held Per-Se Inadmissible Because the Interview of the Child Was Not Electronically Recorded.

B. Even if the Tape Were Not Per-Se Inadmissible, it Should Have Been Excluded Because It Was Not Sufficiently Reliable.

POINT TWO

THE TRIAL COURT'S RULING THAT IF DEFENSE COUNSEL CROSS EXAMINED THE VICTIM AND/OR VICTIM'S MOTHER ON THEIR MOTIVE TO FABRICATE THE ALLEGATIONS OF ABUSE THEN THE STATE WOULD BE PERMITTED TO INTRODUCE HIGHLY PREJUDICIAL AND IRRELEVANT 404(B) EVIDENCE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT THREE

THE DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION WHEN HE WAS IMPROPERLY BARRED BY THE RAPE SHIELD LAW FROM PUTTING INTO EVIDENCE THE FACT OF THE CHILD VICTIM'S PRIOR SEXUAL EXPERIENCE.

POINT FOUR

THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWENTY-YEAR TERM WITH TEN YEARS OF PAROLE INELIGIBILITY ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION AND TO A TEN-YEAR TERM WITH A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY ON HIS ENDANGERING THE WELFARE OF A CHILD CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We reject Points 1, 2, 3 and 5 and affirm defendant's conviction on all counts and his sentence on counts one and two. With respect to defendant's fourth argument, we remand for reconsideration of the sentence imposed on count three.

I

Defendant and K.M.'s mother began living together in the late 1990s, and they married in 2001. At the time of the offenses, they, K.M., and K.M.'s younger brother lived together. K.M. and her brother shared a bedroom, in which they slept in bunk beds. At trial, K.M., then fifteen years old, described the assaults by defendant specifically and graphically. All occurred in the home. The first two occurred while her mother was at work. In the first incident, defendant called K.M. into his bedroom. He pushed her on the bed on her back. He turned her over, pulled up her nightgown, and "he put his private part in [her] butt." K.M. said it hurt. She tried to scream, but defendant pushed her face into the pillow. When the incident ended, defendant told K.M. that if she said anything to anyone he would kill her.

In the second incident, defendant was home alone with K.M. and her brother. K.M. was in her room, on her lower bunk bed watching television. Her brother was in the top bed. Defendant came into the room, "pushed [K.M.] back on the bed and put his private in [her] butt." K.M. again said it hurt. This time she did not try to scream. When asked how it ended, she said: "He -- something -- yellow stuff came out. I know what -- well, cum came out and he got up." When asked where the cum came out of, she said "[h]is private part." When asked whether she knew what it was at that time, K.M. responded in the negative.

When the third incident occurred, K.M.'s mother was also in the house and was sleeping in her room. K.M. was sleeping in her bunk bed face down. Defendant entered the room and "put his private part in [her] butt." He then "turned [her] over" and "put it in [her] private part." K.M. clarified that by her "front" she meant her "private part," and by her "back" she meant her "butt." K.M. again described that it hurt. She did not attempt to scream. When defendant finished, he said he would kill K.M. if she told anyone.

K.M. did not reveal these abuses to anyone until about two years later. She feared defendant, and she feared that if she told her mother her mother would beat her. Finally, on April 24, 2003, at age eleven, she told her grandmother that her "private was hurting," even though it was not, "[b]ecause I felt like that was my way to tell her" what defendant had done to her. This conversation took place at the grandmother's house, where K.M. customarily went after school, until her mother picked her up after work. K.M.'s grandmother told her she should tell her mother. When the mother arrived to pick up K.M., the grandmother advised the mother that K.M. had something of a serious nature to tell her.

When they got home, K.M.'s mother asked her what she had to tell her. She asked her whether anyone had touched her. K.M. twice said no, but then disclosed that "[defendant] had touched me."

K.M.'s mother took her immediately to a hospital, where K.M. was examined. The medical evaluation was inconclusive as to sexual abuse. Therefore, there was no forensic evidence to verify whether any abuse had occurred.

After leaving the hospital, K.M. and her mother returned home and waited for the police to arrive. The police came and arrested defendant, who, with police present, whispered to K.M., "Lie so we can be a family."

That night, Giselle Henriquez, the Multi-Disciplinary Team Coordinator for the Passaic County Prosecutor's Office, who is a Child Interview Specialist, interviewed K.M. The interview began shortly before midnight at the Passaic County Child Advocacy Center. K.M. described the events to Henriquez in a similar manner to the way she described them at trial. Henriquez issued a report and was allowed to testify at trial about the interview and what K.M. told her.

In addition to Henriquez, K.M. and her mother testified for the State. The State also called Dr. Richard F. Coco, a psychologist, who testified regarding Child Sexual Abuse Accommodation Syndrome. Defendant did not testify or call any witnesses.

II

In his first argument, defendant argues that the judge erred in allowing evidence of K.M.'s statement to Henriquez. He challenges the admissibility of the statement on two grounds. He urges us to adopt a per se rule of exclusion because the interview was not electronically recorded. Alternatively, he argues that the statement should have been excluded because it was not sufficiently reliable. We reject both arguments.

After being contacted by the Passaic County Prosecutor's Office, Henriquez arrived at the Passaic County Child Advocacy Center at about 11:35 p.m. to interview K.M. Ten minutes later, K.M. and her mother arrived with two Division of Youth and Family Services (DYFS) caseworkers. Henriquez was advised by a prosecutor's office detective and the DYFS workers that K.M. and her mother had gone to the hospital because K.M. had disclosed to her mother earlier that day that defendant had sexually abused her. K.M.'s mother provided Henriquez with some background information leading up to her discovery of the abuse allegation. K.M.'s mother did not provide any details. Indeed, K.M. had not provided her mother with details. For example, the number of incidents, their timing, and the particular nature of the sexual abuse was not yet known to the mother. K.M.'s mother told Henriquez that K.M. told her that "[defendant] had sex with me," and that he "put his 'thing' in her 'private.'"

Henriquez then brought K.M. into an interview room and explained that her role was to conduct a videotaped interview and find out the truth of what had happened. The detective and DYFS caseworkers observed and listened to the entire interaction in a separate "monitoring room." The detective operated the audio visual equipment.

Henriquez had been a forensic interviewer for seven-and-one-half years and conducted between six and seven hundred interviews. The Child Advocacy Center where the interview took place is based on a national model and is a residential home converted into an office. Henriquez used an interviewing method known as the Corner House Forensic Interview Training Model, a national model structured through a series of steps designed to ask questions of children in a non-leading way. She assured K.M. she was not in any trouble, and K.M. agreed to tell the truth.

Henriquez began with the anatomy identification stage and proceeded to the touch inquiry stage. K.M. used terms to describe body parts such as "private part," "butt," and "chest," which were terms commonly used by eleven year olds.

K.M. described the three assaults in substantially the same manner as we have previously described. The descriptions given by K.M. were in response to open-ended questions. When there was a need for clarification, either open-ended questions or multiple choice questions were posed, but not leading questions. For example, when asked the open-ended question of what happened first in one of the incidents, K.M. said, "He was behind me and put his private in my butt and then he rolled me over and put it in my front part." As the description continued, Henriquez sought clarification, for example, by asking, "did his private touch the skin on top of your butt or inside your butt or something else?" K.M. replied, "In my butt." Henriquez then asked, "Okay and how about the skin of your private. Was his private on top of the skin of your private, inside your private or something else?" K.M. responded, "It was inside my private."

When the interview concluded, it was discovered that the video tape equipment had malfunctioned and the interview had not been recorded. Henriquez decided not to repeat the interview in an effort to have it recorded. She explained that she made this decision pursuant to the "Child First Doctrine where we try not to traumatize the children or - or re-interview them to discuss their abuse over and over again." When she learned of the malfunction, she immediately wrote down notes memorializing K.M.'s answers in "lots of detail." She explained that "[T]he things that I quoted pretty much, yes, they are what [K.M.] said and I asked," and, "[i]f I quoted anything that I said or that [K.M.] said, it is because that is exactly what I remembered it to be." Using those notes, Henriquez prepared a report two months later. After the report was approved by her supervisors, Henriquez destroyed her notes, which was in accordance with the standard operating procedures in the office.

Prior to trial, the judge conducted a hearing pursuant to N.J.R.E. 104(a) to determine whether K.M.'s statements to Henriquez were admissible under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). The only witness at the hearing was Henriquez, whom the court found well qualified as a forensic interviewer and credible. Defendant argued a lack of reliability. He did not argue that a per se rule of exclusion should be adopted because of the lack of electronic recording. Indeed, defense counsel began his argument by saying: "Judge, as you know, we do a -- agree that there's no necessary -- no nec -- there doesn't necessarily [need to] be a video tape of this interview."

The judge found K.M.'s statement trustworthy. He found that K.M. used age-appropriate language in describing the anatomy and in describing defendant's ejaculate as "yellow stuff." He noted that only K.M. and Henriquez were present in the interview, and K.M.'s mother was outside the room. K.M. was not spoken to in front of her mother, and there was no evidence that the mother influenced K.M. in any way. The pre-interview by Henriquez with the mother was brief and did not include any details beyond a cursory description of the allegations, namely that defendant had sex with K.M. Finally, the judge noted that although these interviews are normally videotaped, the video equipment unexpectedly malfunctioned in this case, and Henriquez made a reasoned decision not to repeat the interview and that by immediately memorializing the events in extensive notes, Henriquez properly preserved the substance of the interview.

The tender years exception to the hearsay rule provides:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement . . .; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . .

[N.J.R.E. 803(c)(27) (emphasis added).]

Subsections (a) and (c) of the rule are not implicated here. The prosecutor gave proper notice of intent to use the statement, and K.M. testified at trial. The critical issue is whether the judge's finding of a probability of trustworthiness was supported by substantial credible evidence in the record. The main thrust of defendant's argument on this point is that because of the video malfunction, the preparation by Henriquez of notes after (not during) the interview, and the two-month delay in preparing the report, the trustworthiness requirement could not be satisfied. We do not agree.

The judge had the opportunity to observe and assess the credibility of Henriquez, who testified fully and was subject to extensive cross-examination. The judge applied appropriate reliability factors under the totality of circumstances test. See State v. Michaels, 136 N.J. 299, 306 (1994). These factors include, for example, whether the child's statement was made spontaneously without prompting, whether the account was repeated with consistency, the mental state of the declarant, lack of motive to fabricate, use of age-appropriate terminology, interrogation, and potential manipulation by adults. See State v. D.G., 157 N.J. 112, 125 (1999). The judge's credibility assessment and finding of trustworthiness is well supported by the evidence presented at the Rule 104(a) hearing, and we defer to that finding. State v. Locurto, 157 N.J. 463, 474 (1999).

We can dispose of defendant's argument urging a per se rule of exclusion quite summarily. Defendant acknowledges that no State or federal court has adopted such a rule. Further, defendant did not raise this issue in the trial court, and it is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We nevertheless address the issue substantively.

In Michaels, the Court identified video taping as a "sound interviewing methodology," endorsed by "nearly all experts," which courts should consider in determining trustworthiness. Michaels, supra, 136 N.J. at 313-14 n.1. The court did not impose a recording requirement or even afford that procedure more weight than other desirable interviewing procedures and techniques. See id. at 312-15. Further, the Court stated, "We have recognized generally that the existence of a video or sound recording of a statement elicited through pretrial interrogation is a factor bearing on its reliability." Id. at 314 n.1. (citing State v. Gross, 121 N.J. 1, 10 (1990)). It is thus clear that the presence or absence of electronic recording is only one factor in the totality of the circumstances that determines the admissibility of a tender years statement. There is no basis for adoption of a per se rule of exclusion.

III

We next address defendant's argument that he was denied his rights of confrontation and due process because he was precluded from presenting evidence that K.M. had prior sexual experience. The judge barred the proffered evidence pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7.

A report of one of the physicians who examined K.M. on the day she disclosed the abuse contained an entry stating that, when asked if she was sexually active, K.M. responded, "3 months ago." No further information was contained in that report or provided through any other source. In the same report, the chief complaint reflects that K.M.'s mother related a history of sexual abuse "3 YEARS AGO." Defendant argued before the trial court, and again before us, that this evidence would show K.M.'s source of knowledge of sexual activities as something other than her asserted abuse by defendant.

The Rape Shield Statute restricts the ability of a defendant to introduce evidence of the victim's prior sexual conduct, subject to certain exceptions not relevant here. The purpose of the statute is to protect the privacy interests of the victim and shield her from unscrupulous attempts to impugn her moral character, while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant. State v. Garron, 177 N.J. 147, 165 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). On the one hand, the statute is intended to encourage the reporting of sexual abuse by assuring victims that they will not be subject to untoward invasions of privacy through excessive cross-examination into their sexual past. Ibid. On the other hand, the statute preserves the core constitutional due process and confrontation rights of the accused. Id. at 166.

The statute attempts to strike a balance between those competing interests by setting forth the limited circumstances in which evidence of a victim's prior sexual conduct can be admitted in a sexual assault case. Ibid. It is now well-settled that the statute's specification of permissible relevant purposes must be read as illustrative rather than exhaustive. State v. W.L., 278 N.J. Super. 295, 305 (App. Div. 1995).

Considering these principles, courts determining the admissibility of evidence of a victim's prior sexual conduct must engage in a two-step analysis: first, whether the evidence is relevant to the defense, and if so, whether its probative value outweighs its prejudicial effect. State v. Budis, 125 N.J. 519, 532 (1991). If the court finds that the evidence meets those two requirements, it cannot constitutionally be excluded. Ibid. As with other evidentiary rulings, we will not interfere with the trial court's determination in the absence of a mistaken exercise of discretion. State v. Schnabel, 196 N.J. 116, 131 (2008).

Under the first inquiry, only in situations where the relevance and probative worth of prior sexual experience are "clear and substantial" should the statutory protection bend to the defendant's confrontation rights. State v. Cuni, 159 N.J. 584, 608 (1999). The probative value of the prior acts depends on clear proof that they occurred, that they are relevant to a material issue, and that they are necessary to the defense. Budis, supra, 125 N.J. at 533. "When evidence is offered to show a child's knowledge of sexual acts, its relevance also depends on whether the prior [experience] closely resembles the acts in question." Ibid.

In weighing probative value against prejudicial effect, courts should consider the importance of the evidence to the defense, the extent to which invasion of the victim's privacy would cause anxiety or embarrassment, the possibility that the jury may misuse the evidence, and the court's ability to limit those concerns by controlling the scope of cross-examination and giving a limiting instruction to the jury. Id. at 538-41.

The trial judge rejected defendant's proffer. First, he was of the view that the ambiguous reference in the medical report was insufficient to establish that K.M. had engaged in any prior sexual conduct. Indeed, the "three month" reference may well have been mistaken and intended to be "three years," the time frame of defendant's abuse of K.M. Further, even if K.M. engaged in some other prior sexual conduct, no particulars were provided that would establish any similarity to the incidents involving defendant. Thus, there was a lack of relevance because there was no basis to establish that K.M.'s knowledge of the sex acts she described as perpetrated by defendant might have resulted from some other sexual conduct. The judge also noted that K.M. did not use any age-inappropriate terms in describing the events. Finally, presentation of this evidence, in addition to being purely speculative, would have been very prejudicial to K.M.

We are satisfied from our review of the record that the judge correctly applied the controlling legal principles and did not mistakenly exercise his discretion in barring this evidence.

IV

Defendant argues that he was deprived of a fair trial because the judge ruled that, if defendant asked K.M. or her mother on cross-examination whether they fabricated the charges against defendant because the mother was unhappy in her marriage and wanted to get defendant out of the house, the State would be allowed to produce evidence under N.J.R.E. 404(b) that defendant engaged in sexual misconduct with another child about two years before the abuse of K.M. began. Defense counsel did not ask the forbidden questions on cross-examination, and the other bad acts evidence was never presented to the jury. Although we conclude that the judge's ruling on this issue was erroneous, we also conclude that the error was harmless and does not warrant reversal of defendant's conviction.

Prior to the first day of trial, the State filed a motion in limine to admit evidence that defendant sexually molested a three-year-old boy in 1997. We have not been provided with the moving or opposing papers. The judge decided the motion on the papers and issued a written decision, which is included in the appellate record. The judge found that all four prongs of the test prescribed in State v. Cofield, 127 N.J. 328, 338 (1992), had been satisfied. Relying on State v. G.V., 162 N.J. 252 (2000), and State v. G.S., 145 N.J. 460 (1996), the judge found the evidence relevant "to bolster victim credibility and to show lack of bias on the part of the victim." He also found that the prior incident was sufficiently close in time and similar in nature to the allegations against defendant. The prior incident did not result in any charges or conviction. Apparently relying on written documents, the judge was clearly convinced that the prior incident did occur. Finally, the judge found that "the other crime evidence far outweighs . . . any unduly prejudicial effect on the defendant. The evidence is very probative to rebut and challenge the defendant's attacks on the victim and her credibility. It is important to show that the victim did not fabricate her story." He found that any prejudicial effect could be minimized by an appropriate limiting instruction.

When the case came on for trial, defense counsel noted his disagreement with the court's decision. He argued that, in his view, none of the four prongs were satisfied. He took particular exception to the relevance prong and the balancing of probative value versus prejudice prong. He also argued that without an evidentiary hearing, the clear and convincing prong could not be satisfied. Further, defense counsel sought clarification as to whether the court intended by its ruling that the State could introduce the other crime evidence in its case-in-chief, as the State sought to do, or whether it could only be admitted in rebuttal if defendant raised the issue of fabrication. The judge determined that the appropriate course would be to conduct an evidentiary hearing. He did so before the trial began.

Three witnesses testified at the hearing. The mother of the three-year-old victim, I.B., testified that she took her son with her to visit her boyfriend at a halfway house. While she was visiting inside, she allowed I.B. to play outside on the porch with defendant, who had interacted with I.B. on previous visits. On the way home, I.B. was uncharacteristically quiet. She asked what was wrong, and I.B. told her that defendant "touched" him with his finger, indicating his buttocks area. She returned to the halfway house, informed the supervisor, and immediately took I.B. to the emergency room.

Dr. Mary Grace Ponce was the attending pediatrician in the emergency room. While she examined I.B.'s rectum, he said, "[defendant] did that." I.B. told Dr. Ponce that defendant "put medicine or cream in his behind." Dr. Ponce found no bleeding or lacerations, but she observed two superficial fissures or small cuts on I.B.'s rectum. She concluded: "Can be caused by constipation but cannot not entirely rule out fondling or sexual abuse." According to I.B.'s mother, her son had no recent history of constipation.

Charles Parks was the supervisor at the halfway house. He heard defendant tell I.B. to "[h]old my leg," and had seen that "the little boy had his hand in the back pocket of [defendant]." He admonished defendant for allowing the boy to sit on his lap and for allowing the boy to hold the back of defendant's pants. Parks viewed this as a sexual act, because in prison culture, a man or boy holding the back of another man's pants is a sexual signal meaning that the leading man owns the follower as though he were his sexual property. Parks reported the incident to the police and his supervisors, and he said defendant was sent back to prison.

It was undisputed at this hearing that I.B., who was three years old when the incident occurred, had no present recollection of the incident. I.B. was not called as a witness.

After hearing the testimony, the judge supplemented the findings expressed in his prior written decision. He found that the testimony established clearly and convincingly that defendant sexually molested I.B. In that regard, the judge considered significant I.B.'s fresh complaint of the incident immediately after it happened, along with all of the other evidence. The judge was also satisfied that the incident with I.B. was sufficiently close in time to the incidents involving K.M. and that it was generally similar in nature.

The judge reasoned that the evidence was relevant to a material issue because K.M.'s "credibility is going to be placed in issue at some point." And, he concluded that the prejudicial effect did not outweigh the probative value, because he would give an appropriate limiting instruction. In that regard, the judge noted that the jury would "be told the use for which the evidence is being admitted." He then asked the prosecutor "if you could just state simply again your -- your issue is credibility as well as plan?" The judge repeated his question: "Your reason for offering the evidence?" The prosecutor responded that "the State's offering the evidence for -- not only to bolster [K.M.'s] credibility but to show -- to rebut the claims of lack of bias." The judge then said, "Alright. Okay. Lack of bias. I'm going to permit it, but I'm going to permit it only after cross-examination, [defense counsel]. All right? Depending on what your cross-examination is."

Thus, the essence of the ruling was that if defense counsel asked K.M. or her mother whether they fabricated the allegations for the purpose of getting defendant out of the house, the State would be permitted on rebuttal to present evidence of defendant's molestation of I.B.

In a report that was provided to the defense through discovery, there was a comment by K.M.'s mother that at the time K.M. disclosed the abuse by defendant, the relationship between the mother and defendant "was a mess." At trial, the prosecutor elicited testimony to that effect from K.M.'s mother, who further elaborated that their relationship "had days when it was okay but then it was times when it was really, really a -- bad." On cross-examination, defense counsel reiterated the point, asking K.M.'s mother whether it was correct that she had told an investigator, as she confirmed in her direct testimony, that her marriage to defendant was a mess. She responded affirmatively.

Defense counsel did not go further. He did not ask K.M.'s mother or K.M. whether they concocted this story and made these allegations against defendant because they wanted defendant to get out of the house. Defense counsel provided no basis, aside from the vague comment about the marriage being a mess, to demonstrate that he possessed a good faith belief that such a concoction occurred. Defendant did not say at trial, and he has not said at any time, that he would have testified or presented witnesses who would have said, for example, that his wife said she was going to instigate these allegations or did anything from which such a plan could be inferred, or that his wife had been trying without success to get him out of the house before the allegations were made. Defendant did not request a hearing outside the presence of the jury to question K.M. or her mother on this limited subject.

Throughout their trial testimony, K.M. and her mother consistently and forcefully testified under oath that K.M., unsolicited by anyone, was the first to mention the allegations in her conversation with her grandmother, and then, at her grandmother's insistence, repeated the allegations to her mother. K.M.'s mother described her reaction as being "dumbstruck" upon hearing the allegations. Both were specifically asked whether the mother ever told K.M. what to say, and both adamantly denied it. This was consistent with Henriquez's testimony and with all investigative reports and materials.

It is clear to us that defendant possessed no good faith basis upon which to believe that K.M. or her mother would have responded affirmatively or even equivocally to a question of whether they had fabricated these charges in an effort to get defendant out of the home or for any other reason. The record makes clear that had either of them been asked such a question they would have answered negatively. That would have left the jury with only the question, but no answer, and therefore no evidence to support defendant's intended contention that the charges were fabricated.

To analyze defendant's argument that the judge's ruling deprived him of the opportunity to present a defense because his attorney was effectively precluded from questioning K.M. and her mother about a conspiracy between them to fabricate the charges in order to get him out of the house, we first consider the propriety of the judge's ruling. N.J.R.E. 404(b) states:

Except as otherwise provided by Rule 608(b) evidence 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.

It is well-settled that the specific purposes delineated in N.J.R.E. 404(b) are not an exclusive list, but only illustrative of the kinds of material issues for which courts may admit the evidence. State v. Stevens, 115 N.J. 289, 300-01 (1989).

The party seeking admission of other crimes evidence must satisfy the four-part test set forth in Cofield, supra, 127 N.J. at 338: (1) the evidence 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) 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.

We defer to the trial judge's findings on the second and third prongs, which are supported by substantial credible evidence in the record. The fourth prong, requiring a balancing of probative value against prejudicial effect, comes in to play only if the first prong is established and the probative value is measured. In our view, the judge erred in finding that evidence of defendant's molestation of I.B. was relevant to a material issue in this case. Accordingly, the first prong was not established.

In its appellate brief, the State argues that our "Supreme Court repeatedly has held that evidence of a defendant's prior sexual assault is relevant and admissible to rebut claims that the victim had a bias against the defendant and to bolster the victim's credibility." The trial judge agreed with that proposition. We do not. The State and the trial court rely for this broad proposition on G.S. and G.V. We do not deem either of these cases controlling.

In G.S., an eleven-year-old girl accused her stepfather in 1982 of inappropriately touching her. G.S., supra, 145 N.J. at 462-63. The accusation came after the child had received a poor school grade and her mother told her she would punished with a spanking from the defendant. Id. at 463. The child told her mother she did not want her stepfather to spank her because she believed he would spank her bare bottom in order to view her genitalia, and she then informed her mother that the defendant had fondled her while bathing her and ordered her to lie naked on his bed so he could stare at her. Ibid. Because her mother did not believe or support her, the child eventually recanted the accusations. Ibid.

In 1987, the child again reported abuse by her stepfather, contending it resumed in 1984 and that by 1987 he was engaging in sexual relations with her three times each week. Id. at 463-64. At trial, defendant did not testify, but the defense called witnesses who testified that the child had a reputation for lying and that she frequently told "tall stories" to gain attention. Id. at 465. The defense sought to demonstrate that the accusations were fabricated and motivated by the child's bias against her stepfather, whom she disliked because his strict discipline of her interfered with her relationship with her boyfriend. Ibid.

Evidence of the previously recanted 1982 allegations was admitted pursuant to N.J.R.E. 404(b) for two limited purposes, to: "(1) illustrate that defendant intended to engage in sexual contact with [the child] for the purpose of his own sexual gratification, an element of the charged offense, N.J.S.A. 2C:24-4a; and (2) explain why [the child] did not confide in her mother about the abuse occurring [between 1984 and 1987]." Id. at 466.

In the case before us, neither of the purposes for which the other crimes evidence was admitted in G.S. apply. Further, in G.S., there was no dispute on appeal regarding those purposes or the propriety of admitting the other crimes evidence. Id. at 469. The issue before the Court was limited to the adequacy of the limiting instruction. Ibid. While the Court recounted that "the Appellate Division noted that the other-crime evidence was also relevant to the issue of [the child]'s credibility, a purpose that is not specifically enumerated in [N.J.R.E. 404(b)]," the Court did not rule on that issue. Ibid. Indeed, the Court's holding dealt only with the limiting instruction. Id. at 472.

Therefore, G.S. is of no precedential value regarding the issue before us. We further note that the circumstances in G.S. materially differed from those in this case. There, the other crime evidence involved the same victim as in the charges being tried. There was a logical nexus between the prior course of conduct with a recantation and the assertion that the new allegations were also made up, in each case for some specific purpose for which evidence was presented, namely to avoid a spanking and to get even with the victim's stepfather for being overly strict and interfering with the victim's activities with her boyfriend. Thus, relevance was established.

In G.V., the Court considered whether other crimes evidence consisting of previous sexual molestation against an older sister by defendant, her father, was admissible in defendant's trial for sexual offenses against his younger daughter, that occurred years later. G.V., supra, 162 N.J. at 263-66. A majority of the Court held that "the testimony of another daughter in this case would appear to make it more probable that bias was not the motivation for [the younger daughter]'s testimony. Put another way, is it logical to conclude that two daughters would be less likely to trump up testimony than one?" Id. at 264 (citing G.S., for the proposition that "evidence of uncharged prior sexual assaults on the same victim were admissible as bearing on the credibility of the victim"). The Court thus held that when a "vendetta defense" is asserted, the bias of the victim against the defendant becomes a material issue that is genuinely in dispute. Ibid. In those circumstances, subject to a balancing of the probative value against the prejudicial effect, the other crime evidence would be admissible. Id. at 264-65.

In G.V., the other crime evidence was furnished by another daughter in the same household, and the alleged motivation of both daughters for concocting the charges was to punish defendant for leaving their mother for another woman and bringing her to the house, where a physical altercation occurred between defendant and the older sister's husband. Id. at 255-56. Under these circumstances, relevance was established because of the logical connection between the proffered evidence and a fact in issue. Id. at 263. Thus, the other crimes evidence rendered the inference desired by State to be drawn (lack of fabrication because of bias) more probable than it would be without the evidence. Id. at 263-64.

We do not read G.V. as a blank check for the admission of evidence that a defendant sexually molested another person in any trial for a sexual offense in order to bolster the credibility of the victim in that trial and to refute any claim of bias by the victim against the defendant. In the case before us, there is no nexus connecting defendant's incident with I.B. with anything involving K.M. These were completely unrelated episodes involving completely unrelated victims at different times and places and under different circumstances. The only manner in which the I.B. incident could serve to bolster K.M.'s credibility and refute any allegation of bias by her against defendant would be from an inference that K.M. must be telling the truth because defendant engaged in sexual misconduct against a child before, and thus he has a propensity to engage in such conduct and must have done so with K.M. This, of course, is the precise purpose for which other crime evidence is not permitted.

We therefore conclude that the judge's ruling to allow the State to offer rebuttal evidence regarding defendant's molestation of I.B. if defendant raised the issue of bias was erroneous. However, that does not end our inquiry. We must analyze whether the error prejudiced defendant and deprived him of a fair trial, or whether the error was harmless.

As we have stated, the other crime evidence was never presented to the jury. Thus, the severe prejudice that would have resulted had it been presented did not occur. For the reasons we have previously discussed, we are persuaded that defendant was not denied the opportunity to mount a defense based upon his assertion that K.M. and her mother fabricated these charges to get him out of the house. The assertion is completely unfounded and unsubstantiated. Had the judge ruled that the other crime evidence was not admissible, and if defense counsel would have asked K.M. and her mother whether they concocted this story to get him out of the house, they would have undoubtedly denied it, consistent with their unwavering testimony and pretrial statements throughout this case. As we have stated, defendant proffered no other evidence (unlike in G.S. and G.V.) to support his assertion. We therefore conclude that the erroneous ruling did not affect the outcome of the trial. Accordingly, the error was harmless and does not warrant reversal of defendant's convictions.

V

Finally, we address the sentencing issues. The judge found the applicability of four aggravating factors, namely (1) the nature and circumstances of the offense, (2) the gravity and seriousness of the harm inflicted on the victim, (6) defendant's extensive prior criminal record, and (9) the need for deterrence. See N.J.S.A. 2C:44-1a(1), (2), (6), and (9). He found no mitigating factors.

After K.M. disclosed the abuse, two of her uncles assaulted defendant, severely injuring him, causing him to be substantially or completely blind and partially deaf. Defendant urged the court to find mitigating factor (11), that his imprisonment would entail excessive hardship, because of that circumstance. See N.J.S.A. 2C:44-1b(11). The judge rejected that mitigating factor. Finding that the aggravating factors substantially outweighed the non-existent mitigating factors, the judge imposed maximum sentences with maximum parole disqualifiers on all three counts. He ordered the sentences for the first two counts to be served concurrently, and the sentence for the third count (for endangering the welfare of a child) to be served consecutively.

On the first two counts, we are satisfied that the judge's findings on the aggravating and mitigating factors are supported by substantial, credible evidence in the record, and that the sentence imposed on those counts was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

With respect to count three, however, the judge did not articulate the reasons for imposing a consecutive sentence, contrary to the mandate of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We note that at the sentencing proceeding, the prosecutor urged the judge, "if you are to find that N.E.R.A. does not apply in this case, we would assert that a consecutive sentence is appropriate and proper in this matter under State v. Yarborough [sic]." We fail to see how that would be a proper basis under the Yarbough guidelines.

We accordingly remand for reconsideration of the sentence on count three. The judge shall evaluate and analyze all of the Yarbough guidelines and determine their applicability in the circumstances of this case in determining the appropriate length of the sentence on count three and whether it should be served consecutively or concurrently with counts one and two.

 
Defendant's convictions on all three counts are affirmed. Defendant's sentence on counts one and two is affirmed. The matter is remanded for reconsideration of the sentence on count three. We do not retain jurisdiction.

If the first prong were established, we would harbor significant reservations about the fourth prong. Evidence of a prior molestation would be devastating to defendant, particularly when matched against the very low probative value of, at best, a very weak inference (in our view, nothing more than speculation) that K.M. and her mother concocted these allegations to get defendant out of the house.

(continued)

(continued)

34

A-1607-07T4

RECORD IMPOUNDED

May 11, 2009