STATE OF NEW JERSEY v. J.V.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2261-06T42261-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.V.,

Defendant-Appellant.

_______________________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-07-1607.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, J.V., was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(c) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count four). Counts one and two charged defendant with crimes against B.M.; counts three and four charged defendant with crimes against S.M. B.M. and S.M. were defendant's stepdaughters through his marriage to Y.R., their mother.

Tried to a jury, defendant was found guilty on counts one and two and not guilty on counts three and four. The trial judge granted the State's motion for extended term sentencing. The trial court sentenced defendant to thirty-years imprisonment with an eighty-five percent parole ineligibility term, pursuant to the No Early Release Act (NERA). The court also imposed parole supervision for life, the applicable fines, and penalties. Counts one and two were merged for sentencing purposes. Defendant appeals. We affirm.

Y.R. began dating and cohabitating with defendant in 1996. The couple lived with Y.R.'s daughters, thirteen-year old S.M., eight-year old B.M., and infant K.S.

While living with Y.R. and her daughters, defendant observed B.M. and S.M. were staying out until 10:00 p.m. on school nights. Defendant began requiring the girls to be home by 7:00 p.m. and in bed by 9:00 p.m. Both girls argued with defendant about the curfews, and defendant recognized that he and S.M. did not "click." S.M. stated that she was not allowed to go anywhere except school activities.

According to S.M., when she was fifteen, defendant once sat on her bed while she laid on it, and he touched and rubbed her vagina over her clothes and bed covers. S.M. also testified that defendant entered the bathroom twice while she showered. In the first instance, defendant told S.M. that he wanted to show her how to shave herself and that he wanted to shave her. On the second occasion, defendant told S.M. that he wanted to show her how to shave herself, he wanted to shave her, and it was normal to do so. Defendant, fully-clothed, then entered the shower and hugged S.M. S.M. told defendant to get out, and he complied. S.M. was unclothed both times. Defendant denied these encounters occurred.

According to S.M., she reported the shower incidents to Y.R., but Y.R. did not believe her. Y.R. testified that S.M. told her that defendant tried touching her. Y.R. confronted defendant, but she said he denied the events took place, so Y.R. allowed defendant to remain in the house. Neither S.M. nor Y.R. contacted the police. S.M. stated that, shortly after these incidents, she informed her grandparents about the encounters with defendant and moved in with them in upstate New York. S.M. explained that she did not call the police because she was moving away from defendant, her mother did not believe her, and she thought nothing would happen anyway.

Defendant's recollection differed from S.M.'s regarding her departure from the house. He recalled observing S.M. on the side of her cousin's house kissing a boy, and confronting her about it. S.M. struck defendant, and Y.R. eventually arrived, intervened, and argued with S.M. The next morning, the police department called S.M. and Y.R. down to the station, and S.M. subsequently moved to her grandparents' house. Defendant explained that S.M. moved away because she grew tired of defendant "giving her rules."

In 1999, Y.R. married defendant. As B.M. grew older, defendant imposed a telephone curfew of 9:00 p.m. upon her, in addition to her other curfews. B.M. described defendant as being "very strict." B.M. stated she could be punished for "[e]very little, any possible thing." Y.R. remarked that defendant did not want B.M. "going to places with her friends at all. He was controlling. He always wanted to put the rules down."

B.M. claimed that she was fourteen when defendant found her playing cards on Y.R. and defendant's bed. Defendant taught her how to play strip poker. They then played strip poker, and the game concluded with B.M. fully undressed and defendant wearing some clothes. Defendant denied this occurred.

B.M. remembered that a few days after the card game, defendant joined B.M., in Y.R. and defendant's bedroom, while she was using the computer. Y.R. was not home. Defendant instructed her to close the door and lay next to him on the bed. Defendant "ended up being on top" of her, placed a pillow above her body to block her view, and engaged in vaginal intercourse with her on the bed. B.M. cried, walked out of the room, and then showered. Shortly thereafter, defendant walked into B.M.'s room and promised her that he would not "do it again." Later that day, B.M. wrote a note to her mother about the card game and what happened earlier in the day, and she gave it to Y.R. Y.R. confronted defendant and yelled at him in the bedroom. Defendant responded and denied touching and playing card games with B.M. Afterwards, defendant entered B.M.'s room and apologized. The next day, Y.R. told B.M. that defendant swore he would never have intercourse again with her. Defendant continued to live in the house.

Several days later, B.M. was removed from cheerleading practice to see a school counselor, a prosecutor, a police officer, a detective, and a DYFS worker, who asked her whether her stepfather had done anything "he wasn't supposed to." B.M. denied that her stepfather had done anything. A few days later, a DYFS worker came to her home and questioned B.M. and K.S. separately. These investigations occurred because B.M. had spoken to one of her aunts about defendant, who in turn called DYFS. At the time, B.M. again denied that defendant had touched her in an uncomfortable manner. B.M. and Y.R. explained that they had denied anything had occurred because they were scared that they would be separated.

B.M. stated that the following year, in 2004, defendant required her to obtain his permission to go to her friends' houses. Most of the time, defendant granted B.M. permission on the condition that they have vaginal intercourse. B.M. estimated that, starting in March of 2004, they had vaginal intercourse ten or eleven times. Each time defendant and B.M. engaged in vaginal intercourse, she would be on her hands and knees on the bed, he would approach her from behind, and they would never kiss. B.M. believed that defendant used a condom each time.

On April 8, 2005, B.M. asked defendant for permission to sleep over at a friend's house. B.M. testified that defendant wanted to have vaginal intercourse with B.M. before she went to her friend's house, but they did not because Y.R. was home. They agreed to have vaginal intercourse another time, and B.M. slept over her friend's house.

The next week, B.M. asked defendant if she could go to another friend's house after school on April 18, 2005. Defendant granted her permission but said that she owed him double for the April 8 sleep over and for this grant of permission. On April 18, 2005, B.M. came home from school and had vaginal intercourse with defendant. Because B.M. owed defendant double, she told defendant she was ready for him to perform oral sex on her. Defendant performed oral sex on B.M. Defendant then drove B.M. to her friend's house and later drove her back home.

Defendant denied sexually assaulting B.M. A former employer of defendant claimed that defendant had been at his home working on his yard from approximately 8:30 a.m. until 5:00 p.m. on April 18, 2005. The employer appeared confused on dates when asked when defendant last did some work for him. Defendant testified that he was not at home on April 18 when B.M. got home from school and that he did not drive her to her friend's house.

After returning home, B.M. called two friends, M.R. and L.P., and told them about how defendant forced her to have vaginal intercourse to gain permission to leave the house. M.R. told his mother, G.R., and they drove to defendant's house. M.R., G.R., B.M., and Y.R. then drove to a store's parking lot. M.R. and G.R. entered the store and left Y.R. and B.M. in the car. B.M. told Y.R. that defendant was touching her and having vaginal intercourse with her. When Y.R. and B.M. returned home, defendant was not there. When defendant arrived home, Y.R. struck defendant and asked him "what have you been doing to [B.M.]?" Following an argument between Y.R. and defendant, defendant left the house.

Defendant returned to the house on April 21, 2005, to attend a family wedding because Y.R. did not want her mother to know what happened. After the wedding, defendant resumed living in the house.

On April 27, 2005, B.M. began crying in class. A friend consoled B.M., and B.M. told her what had happened between her and defendant. B.M. then told her Spanish teacher that she had been sexually assaulted by her stepfather. The teacher took B.M. to the principal's office, and both DYFS and the police were contacted. The teacher accompanied B.M. to the police station, where B.M. gave a statement to the police about the sexual assaults. At the police station, a DYFS worker met with B.M.

After taking a statement from the teacher, Detective Michael Bonanno sent a patrol officer to defendant's residence to bring him to the Neptune Police Station. Before speaking with defendant, Detective Bonanno read defendant his Miranda rights. Detective Bonanno instructed defendant to write his initials next to each warning, signifying that defendant understood each one; defendant complied with this instruction. Underneath a pre-printed Miranda waiver on the form, defendant signed his name. Detective Sergeant Michael Emmons also witnessed defendant sign and initial the form.

Detective Bonanno conducted a pre-statement interview with defendant by asking defendant why he thought he was there. Defendant answered that he did not know. Detective Bonanno then informed defendant of the allegations B.M. made to her teacher. According to Detective Bonanno, defendant denied everything at first, but defendant eventually opened up and admitted to certain things, such as playing strip poker with B.M. when she was fourteen and once having intimate relations with B.M.

Detective Bonanno claimed defendant then gave his statement, which was typed by a secretary. Detective Bonanno explained that the statement consisted of defendant giving a narrative and the police officers following up with questions. After completing the typed statement in accordance with the Monmouth County Prosecutor's Office Guidelines, defendant was videotaped reciting his answers in the statement to the questions read by Detective Bonanno.

In the statement, defendant answered that the statement was made voluntarily and "without promise of hope or reward, without fear or threat of physical harm, and without coercion or duress." Defendant confessed to playing strip poker with B.M. to the extent that they were in their "under clothes." Defendant admitted that B.M. would agree to intercourse with defendant so he would "let her out" of the house to see friends or to sleep over a friend's house. Defendant admitted this happened about ten times. Defendant said that sometimes B.M. would instant message defendant when they were on computers in different rooms, asking if Y.R. was asleep. If Y.R. was sleeping, defendant and B.M. would meet in the living room or B.M.'s bedroom to have sex or occasionally "wrestle . . . and grab each other" and make plans to have sex later in the evening. In his statement and at trial, defendant described his screen name as "Iloveto88," and defendant noted eighty-eight as B.M.'s birth year. Defendant denied that he ever touched K.S., B.M. and S.M.'s younger sister. Defendant conceded the last time he had vaginal intercourse with B.M. was April 18, 2005, at about 3:00 p.m. Defendant stated that on another occasion, he and B.M. "started playing around. She started grabbing me in my privates and I grabbed her in her privates above the clothes." Defendant also stated he performed oral sex on B.M. once. Lastly, defendant answered that he was treated fairly by the members of the Neptune Township Police Department. Defendant's signatures on the statement were recorded on videotape. The statement was completed by 8:00 p.m., and the videotape was completed at 8:30 p.m.

Defendant denied providing this information for the written statement. Instead, defendant insisted all of the statements' specifics "were provided to [defendant] by Detective Bonanno" on a piece of paper. In the pre-trial Miranda hearing, defendant testified that the paper Detective Bonanno gave him contained only the allegations that defendant had engaged in sexual intercourse with B.M. on April 18, 2005. At trial, defendant denied the conduct specified in the statement. Defendant maintained he signed the statement because he was offered to be released on his own recognizance from the police station by Detective Bonanno. Detective Bonanno claimed that he was unaware of the conduct specified in the statement until defendant gave his statement. Detective Bonanno denied that he nor any police officer promised defendant that defendant would be released on his recognizance.

Afterwards, Detective Bonanno took Y.R.'s statement, at 9:25 p.m., and then B.M.'s statement, at 10:30 p.m. Days later, Detective Bonanno took statements from two of B.M.'s friends and S.M. S.M. provided Detective Bonanno with a statement that included the sexual misconduct involving defendant and S.M.

Defendant explained that B.M. and S.M. fabricated their accusations against him because they did not like that he, unlike their mother, disciplined them and imposed curfews and rules upon them.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL WHEN IT REFUSED TO SEVER COUNTS 1 AND 2 FROM COUNTS 3 AND 4 SO THAT HE WOULD BE TRIED ON THE CHARGES THAT CONCERNED B.M. SEPARATE FROM THOSE CONCERNING S.M.

A. Intent and motive were not material issues genuinely in dispute.

B. Possible use of other crimes/bad acts evidence to rebut "vendetta defense."

C. Since the trial court never reviewed the uncorroborated statements of B.M. and S.M. at the Rule 104 hearing, it could not properly conclude that those statements constituted "clear and convincing" evidence as required by the Cofield test.

D. The trial court applied the wrong standard for determining whether the prejudicial value of the other crimes or bad acts evidence was outweighed by the risk of prejudice to the defendant.

E. The prejudice from allowing the jury to hear the other crimes evidence in this case outweighed the probative value of that evidence.

F. Reversal is necessary because the trial court failed to give a limiting instruction on how the jurors could and could not properly use the sisters' testimony about their sexual abuse.

POINT II

THE TRIAL COURT FAILED TO ADEQUATELY ADVISE THE JURY HOW TO EVALUATE THE STATE'S EVIDENCE OF DEFENDANT'S UNRECORDED INTERROGATION AND THE CONFESSION PURPORTEDLY RESULTING THEREFROM, THEREBY DEPRIVING HIM OF A FAIR TRIAL.

POINT III

THE THIRTY-YEAR PRISON TERM, 85% WITHOUT PAROLE, IMPOSED IN THIS CASE WAS EXCESSIVE. (Not raised below).

We address defendant's arguments in the order raised in his brief.

I.

Defendant argues in Point I that the trial judge erred in denying defendant's motion to sever the charges against defendant relating to each victim. Defendant contends that the judge misapplied the Cofield test and, therefore, should not have allowed evidence of defendant's other-crimes towards both sisters at trial. Defendant maintains that neither his intent nor his motive were disputed issues of material fact. Defendant also asserts that he should be permitted to disclaim his "vendetta" defense, if this matter is remanded for a new trial at a Rule 104 hearing.

In denying defendant's motion to sever the charges for each victim, the trial court determined that defendant would not be unduly prejudiced by joinder of all the charges. Applying the first prong of the Cofield test and N.J.R.E. 404(b) to the four counts of defendant's alleged offenses against B.M. and S.M., the trial judge determined that each count's evidence would be admissible to prove defendant's intent, motive, and plan. The court found the second prong was satisfied because the alleged offenses involved similar sexual assaults of two sisters and occurred close in time, as the gap was due to the girls' ages. According to the trial court, the clear and convincing evidence standard could be met by uncorroborated testimony which was found sufficient for indictment by the grand jury. Lastly, the probative value was not found to outweigh the prejudice because evidence of intent and motive requires a stronger showing of prejudice to be excluded and that higher standard was not met here.

Rule 3:7-6 permits joinder when two or more offenses are "of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan."

When determining whether charges may be joined, a court should focus on "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Therefore, if each charge were heard separately, and evidence of each crime were admissible in the trials for the other charges pursuant to N.J.R.E. 404(b), then the charges may be joined in one trial.

To be admissible pursuant to N.J.R.E. 404(b), other-crimes evidence must be necessary to prove a relevant, genuine issue. Cofield, supra, 127 N.J. at 333-34. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Courts should focus their inquiry "on the logical connection between the proffered evidence and a fact in issue. If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Darby, 174 N.J. 509, 519 (2002). However, this evidence may not be offered to prove defendant's propensity towards criminal conduct. State v. Pitts, 116 N.J. 580, 602 (1989). Referring to the trial judge's decision as to the first prong of Cofield, intent and motive were found to be present. We disagree.

State v. Oliver, 133 N.J. 141 (1993), considered whether other-crimes evidence of prior sexual assaults may be used to prove the defendant's intent to commit a sexual assault. The Supreme Court reasoned that "[w]hen a defendant claims that the alleged victim gave permission for the penetration, the role of the jury is to determine whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable. The jury is also entitled to determine who actually held such a belief." Id. at 155. However, the Court warned that other-crimes evidence may be more prejudicial than probative and that a trial court should limit its use. Id. at 156. Thus, the Court limited the use of the evidence of sexual assaults to prove intent to commit sexual assault, when the victim's consent is in dispute.

A common plan "contemplates more than a strong factual similarity between the 'other crimes' and the indicted offense. The 'plan' example refers to instances in which the other-crime[s] evidence proves the existence of an integrated plan, of which the other crimes and the indicted offense are components." State v. Stevens, 115 N.J. 289, 305-06 (1989).

The facts here bear a resemblance to State v. Oliver, supra, 133 N.J. at 152. There, the Supreme Court considered whether three sexual assaults may be offered as evidence of a common plan at a trial where the defendant was charged with two other sexual assaults. Ibid. The Court distinguished these sexual assaults from an "integrated plan" or a "larger continuing plan for which the crime on trial is a part." Ibid. The Court held these "discrete, albeit similar, acts" did not comport with a common plan. Ibid.

The State, in Oliver, also argued that defendant had a singular purpose, to have intercourse, when he committed these sexual assaults. Ibid. However, the Court noted that purpose "can mean a 'goal' or an 'end' and it can also mean 'intent.'" Id. at 152-53. The Court concluded that "[d]efendant might well have had the same purpose, meaning 'intent,' each time he committed sexual assault; but he did not commit each sexual assault to further some overall purpose in the sense of pursuing a single goal." Id. at 153. The Court explained that a common plan "contemplates more than a strong factual similarity between the 'other-crimes' and the indicted offense." Id. at 152. Therefore, Oliver did not permit the introduction of the sexual assaults to show the defendant's plan.

Defendant does not claim to have mistakenly made contact with S.M. or that either victim consented to his contact. Indeed, defendant flatly denies ever assaulting B.M. or sexually contacting S.M. Defendant's intent is not a material, relevant issue in this case and not a proper reason for joinder.

Motive evidence explains why a defendant committed a criminal offense. Biunno, Current Rules of N.J. Evidence, comment 9 on N.J.R.E. 404 (2009). When courts have admitted other-crimes evidence to prove motive, the evidence "show[s] why a defendant engaged in a particular, specific criminal act." State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001); e.g., State v. Collier, 316 N.J. Super. 181, 193 (App. Div. 1998) aff'd o.b., 162 N.J. 27 (1999) (determining that a victim's implication of defendant in the killing of a dog was relevant to prove defendant's motive when he shot the victim). "The common thread which runs through these [motive] cases is that when evidence of prior crimes may disclose the reasons why defendant committed the present offense it is admissible to suggest a motive for why he might have committed the present offense." State v. Hasher, 246 N.J. Super. 495, 500 (Law Div. 1991).

Defendant's alleged offenses against S.M. do not logically explain why defendant would then sexually assault B.M. The only inference to be made between the two acts would be related to defendant's propensity, which is prohibited by N.J.R.E. 404(b). There is no logical reason to explain defendant's motive based on the counts relating to S.M. Motive was not a relevant issue for purposes of joinder.

Other-crimes evidence may also be used to refute a witness's bias raised by defendant at trial. See State v. G.V., 162 N.J. 252, 263 (2000). In G.V., the Supreme Court determined that other-crimes evidence was not admissible to prove defendant's motive, intent, lack of accident, or opportunity for molesting his daughter. Id. at 261, 265. However, the defendant in G.V. theorized that the victim fabricated her story because she wanted revenge on defendant for leaving her family and home. Id. at 263. The testimony of another daughter in the case, who previously was subjected to similar abuse, was offered to prove that the victim's allegations were not fabricated from her bias against the defendant. Id. at 264. The Court conceded that this was relevant to a material issue, but it observed that the issue of bias did not become a material issue until the defendant actually rebutted the victim-witness's testimony at trial. Ibid. As the Supreme Court put it:

If, at the hearing prior to trial under Evidence Rule 104, defendant disclaims the use of the vendetta defense, the State would have no basis for admitting the evidence. On the other hand, if defendant renews the vendetta defense, it appears to us that the testimony of the older sister is relevant to show that the testimony of Laura is not the product of bias.

[Id. at 264.]

Here, defendant raised a vendetta defense at trial. Defense counsel questioned S.M. about the rules that defendant imposed upon her and emphasized that S.M. was not allowed to leave the house except for school and after school activities. Moreover, defendant testified that B.M. accused defendant of assaulting her "[b]ecause she . . . just like S.M., did not like the rules that I was putting in the house . . . . On B.M. I was putting the same rules as S.M." Defendant also explained the different curfews he imposed on B.M. and said B.M. did not like the rules. Defendant clarified that he knew B.M. did not like the rules because she yelled at him and would argue with him. Defendant testified that S.M. "didn't like" him and that they did not "click." The charges regarding S.M. were relevant to disprove B.M.'s bias, a defense which defendant raised at trial.

However, defendant asserts that if this court orders a remand, then defendant should be able to disclaim his vendetta defense, thereby closing a door through which the State may offer evidence of the offenses relating to each victim. We agree.

The same option should be available to defendant here. The first prong would, therefore, not be satisfied under the present circumstances.

The second prong of Cofield inquires whether the evidence is "similar in kind and reasonably close in time to the offense charged." Cofield, supra, 127 N.J. at 338. This prong is limited in its application because its language is not found in N.J.R.E. 404(b). State v. Williams, 190 N.J. 114, 131 (2007). The Supreme Court stated:

the second prong may be eliminated where it serves no beneficial purpose . . . . [The prong's usefulness] is limited to cases that replicate the circumstances in Cofield, in which evidence of drug possession that occurred subsequent to the drug incident that was the subject of the prosecution was relevant to prove possession of the drugs in the charged offense.

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

If other-crimes evidence is offered to prove identity or a common scheme or plan, this prong is applicable. State v. Carswell, 303 N.J. Super. 462, 470-71 (App. Div. 1997).

Other-crimes evidence and the charges at hand need to have special relevance, as demonstrated by the similarity of offenses. Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b) (2009). This special relevance protects juries from focusing on propensity as the principal issue. Ibid. The standard for this prong is not the same as the standard for proving identity under N.J.R.E. 404(b).

No absolute rule exists for when other-crimes evidence is not reasonably close in time to the offense. See State v. Covell, 157 N.J. 554, 567, 570 (1999) (sixteen months); State v. Nance, 148 N.J. 376, 389-90 (1997) (six or seven months); State v. Stevens, 115 N.J. 289, 295-96 (1989) (two and one-half years); State v. Ramseur, 106 N.J. 123, 267 (1987) (one and one-half years). Notably, State v. Krivacksa, 341 N.J. Super. 1, 41 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), determined that sexual assaults that occurred approximately two years apart were "reasonably proximate in time."

Here, the State produced testimonial evidence that defendant inappropriately touched both victims. While approximately four years elapsed between the alleged offenses, there is a striking similarity in age between the two victims when the incidents allegedly began to occur. S.M. testified that defendant committed his offenses against her when she was about fifteen. B.M. stated that defendant began to sexually assault her when she turned fourteen. The general similarities in time and offenses were sufficient to satisfy the second prong of the Cofield test.

The third prong requires "clear and convincing evidence" that the other-crime occurred for its evidence to be admitted. State v. Hernandez, 170 N.J. 106, 119 (2001). Clear and convincing evidence produces "a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 339 (App. Div. 1981), mod. o.g., 90 N.J. 361 (1982) (internal quotations omitted).

Defendant contends that the trial court erroneously assumed that the State produced clear and convincing evidence of defendant's offenses since the trial court did not read the victims' statements and instead relied on the grand jury's indictment that in turn relied on these statements.

Uncorroborated evidence may satisfy the burden of proof required by the standard of clear and convincing evidence. In re Seaman, 133 N.J. 67, 84 (1993). Our Supreme Court also noted that uncorroborated testimony of a victim may satisfy the burden of proof of guilt beyond a reasonable doubt required in a criminal case. Id. at 83. Thus, uncorroborated testimony may satisfy the clear and convincing standard.

A grand jury does not weigh evidence presented by each party; in fact, "[c]redibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." State v. Hogan, 144 N.J. 216, 235 (1996). A grand jury simply determines if the State demonstrates a prima facie case that an accused committed an offense. Id. at 236.

In Hernandez, our Supreme Court determined that a trial court could determine that the clear and convincing standard was met by a witness's uncorroborated testimony. Hernandez, supra, 170 N.J. at 125-26. In Hernandez, the judge did not decide whether the witness's uncorroborated testimony satisfied the clear and convincing standard in a Rule 104 hearing, outside the presence of the jury. Id. at 127. Nonetheless, the Supreme Court held that a fact finder could conclude the witness's testimony was truthful. Id. at 128. The Supreme Court deferred to the trial court because it observed the witness's demeanor and candor. Ibid. The Court in Hernandez held that the trial court did not abuse its discretion, and the Court ruled the clear and convincing standard could be met by uncorroborated testimony heard by the fact finder. Ibid.

Here, the trial judge acknowledged that the State possessed evidence of defendant's offenses in the form of statements made by each victim. The trial judge admitted he had not read the statements; nonetheless, the judge determined that if the statements provided a grand jury with sufficient evidence to indict defendant, the evidence would suffice for the clear and convincing standard.

The trial court's reliance on the grand jury's indictments based on the victims' uncorroborated statements was insufficient to meet the clear and convincing standard. However, at trial, both victims testified and were cross-examined. The victims' demeanor and candor were evaluated at this time by the jury. The trial judge also observed their testimony. Following Hernandez, the third prong was satisfied.

"[T]he balancing test of Cofield's fourth prong . . . incorporates the traditional balancing test of Rule 403." State v. Long, 173 N.J. 138, 162 (2002). When applying this prong, 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." State v. Barden, 195 N.J. 375, 389 (2008). Additionally, "certain types of evidence, including evidence of motive or intent, 'require a strong showing of prejudice to justify exclusion.'" Long, supra, 173 N.J. at 164 (quoting State v. Koskovich, 168 N.J. 448, 486 (2000)).

Defendant argues that the trial judge's analysis under the fourth prong was flawed because he required an overwhelming amount of prejudice to require exclusion. Because we have concluded that motive or intent could not satisfy the first prong, we need not address whether the trial court misapplied the standard in weighing the probative value against any prejudice. Indeed, the entire weighing process was unbalanced because there was no probative value, except for the vendetta defense, to measure against any ensuing prejudice.

Parenthetically, defendant is not necessarily prejudiced when the court joins charges against him. To be sure, the jury is instructed to consider the charges separately, and consequently, the defendant is acquitted on some charges but convicted on others. See State v. Moore, 113 N.J. 239, 276 (1988); State v. Scioscia, 200 N.J. Super. 28, 43 (App. Div. 1985); State v. Hines, 109 N.J. Super. 298, 306 (App Div.), certif. denied, 56 N.J. 248, cert. denied, 400 U.S. 867, 91 S. Ct. 108, 27 L. Ed. 2d 106 (1970).

The trial court's limiting instruction (discussed in Point II) significantly reduced the potential for defendant to suffer undue prejudice. The jury received clear instructions from the trial court to consider each charge against defendant separately. The jury followed these instructions, as demonstrated by its verdict to acquit defendant on the charges relating to S.M. However, because the weighing process could not be engaged, the fourth prong of the Cofield test could not be measured and its satisfaction determined.

Even though the four prong test under Cofield was not satisfied, the denial of severance was harmless error. "Under the harmless error analysis, any prejudice to the defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997). The central inquiry for determining whether harmless error occurred is "whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits

. . . ." State v. Macon, 57 N.J. 325, 338 (1971).

In G.V., our Supreme Court reversed a defendant's convictions due to misjoinder. G.V., supra, 162 N.J. at 262-65. In G.V., the Court found there was not harmless error when improper N.J.R.E. 404(b) evidence was admitted by the judge. Id. at 262-63. The Court warned that "errors which impact substantially and directly on fundamental procedural safeguards . . . are not amenable to harmless error rehabilitation." Id. at 262. The Court also explained "that other-crime evidence has a unique tendency to turn a jury against the defendant." Ibid.

Defendant's case is distinguishable from G.V. because the defendant in G.V. was convicted on all counts. Id. at 254. Here, defendant was in fact acquitted on charges that he now claims should have been severed. Thus, the jury was not distracted or prejudiced by the other-crimes evidence.

In United States v. Cody, 498 F.3d 582, 587 (6th Cir. 2007), the defendant sought to sever charges of escape from custody from charges related to robbery and aiding and abetting a separate robbery. Id. at 585-86. The judge denied Cody's motion. Id. at 586. The jury convicted Cody on four counts relating to the robbery and escape, but he was acquitted for aiding and abetting the separate robbery. Id. at 585-86. Reviewing the misjoinder for harmless error, the Sixth Circuit specifically noted "[e]rror based on misjoinder is almost always harmless where, as here, the trial court issues a careful limiting instruction to the jury on the issue of possible prejudice resulting from the joinder." Id. at 587.

In Cody, the district court instructed the jury at the conclusion of trial:

The defendant has been charged with multiple crimes. The number of charges is no evidence of guilt and this should not influence your decision in any way. It is your duty to separately consider the evidence that relates to each charge and to return a separate verdict for each one. For each charge you must decide whether the government has presented proof beyond a reasonable doubt that the defendant is guilty of that particular charge. Your decision on one charge, whether it is guilty or not guilty, should not influence your decision on any of the other charges.

[Id. at 588.]

The Sixth Circuit presumed that the jury "followed this instruction and did not make an improper propensity inference." Ibid. The Sixth Circuit observed that the acquittal on one count proved that the jury was able "to compartmentalize and distinguish the evidence concerning the different offenses charged." Ibid.; see United States v. Chavis, 296 F.3d 450, 462 (6th Cir. 2002) (citing the defendant's acquittal on a possession-with-intent charge as "support for the conclusion that [the jury] did not label [the defendant] as a 'drug dealer' based upon his involvement in [a separate firearm offense]"); United States v. Thompson, 286 F.3d 950, 968 (7th Cir. 2002) (citing acquittal on murder-related charges made it "highly unlikely that the . . . defendants were prejudiced by the joinder of the murder-related charges with the conspiracy charge."); United States v. Hubbard, 61 F.3d 1261, 1272 (7th Cir. 1995) ("[T]he fact that the jury convicted Hubbard on the weapons offense but could not reach a verdict on the two narcotics charges suggests, if anything, that the jury was quite able to separate the firearms count from the narcotics counts and deliberate on each with the appropriate evidence and legal criteria in mind."); United States v. Bibby, 752 F.2d 1116, 1122 (6th Cir. 1985) (holding that acquittal on misjoined charges as evidence that the defendant was not prejudiced by the joinder). Hence, the court determined that joinder was harmless even if it was improper. Cody, supra, 498 F.3d at 588.

Similar to Cody, joinder of the offenses allegedly committed against S.M. did not deny defendant a fair trial and a fair decision on the merits. Here, the jury was instructed to consider each charge separately like in Cody. Unlike G.V. and more like Bibby, Chavis, Cody, Hubbard, and Thompson, the jury acquitted defendant on the charges involving S.M. The jury complied with the judge's instructions and considered the offenses committed against each victim separately. The jury had the benefit of overwhelming evidence supporting its verdict to convict defendant for the offenses committed against B.M.: namely, defendant's confession at the police station, defendant's videotaped reading of his answers to Detective Bonanno's questions in his confession, B.M.'s testimony, and Y.R.'s testimony that defendant confessed to her. We are satisfied that the jury reached the same result it would have reached even if the charges had been severed.
II.

Defendant argues in Point I(f) that the trial judge did not properly instruct the jury of permitted and prohibited purposes of how to consider "other-crimes" evidence.

Defense counsel did not object to the judge's instruction. The error, if any, is reviewed on a plain error basis. R. 2:10-2. We must consider whether the possibility of an unjust result is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

The trial court instructed the jury in connection with the crimes against B.M. and S.M. and how the evidence was to be used in the following general terms:

[T]here are four different offenses. They are separate offenses by separate counts of the indictment for your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt.

Defendant is entitled to have each count considered separately by the evidence, which is relevant and material to that particular charge based upon the laws. And I'm going to give them to you.

What that really means is, in regard to the charge against [B.M.], the charge where [B.M.] is allegedly the victim, the charge with [S.M.], you can't bootstrap one on top of the other. Well he did this one, therefore, he must be guilty of the other. They're all separate charges, should be considered separately by you.

In this instruction to the jury, the trial court did not inform the jury to only consider certain evidence as evidence of intent, motive, or plan. Rather, the trial judge properly instructed the jury that evidence of a crime against one victim should not be viewed as evidence of a crime against the other victim. While the charge did not contain the words "predisposition" or "propensity," the essential instruction carried that meaning in different language.

Unlike in State v. Cofield, the jury must have followed the court's instructions to compartmentalize each charge separately in its deliberations, acquitting defendant of the two offenses against S.M., and convicting him of the offenses against B.M. The jury's verdict reflects a separate assessment of each charge. We are persuaded there was no error in this aspect of the charge, much less plain error.

III.

Defendant contends in Point II that the trial court erred in instructing the jury how to evaluate defendant's unrecorded interrogation and confessions. We disagree.

The trial court instructed the jury on evaluation of defendant's oral and written statements in the following pertinent terms:

There is, for your consideration in this case, both written and an oral statement allegedly made by [J.V.]. It is your function to determine whether or not the statement was actually made by him, and if made, whether the statement, or any portion of it, is credible.

. . . In considering whether or not an oral statement was actually made by the defendant, and if made whether it was credible, you should receive, weigh, and consider this evidence with caution based upon the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant.

The specific words used and the ability to remember them are important to the correct understanding of any oral communications, because of the presence or absence or change of a single word may substantially change the true meaning of even the shortest sentence. You should therefore receive, weigh, and consider such evidence with caution.

You also have in this case, a written statement that [J.V.] admits making. He has said that he made the statement. The officer testified as to having provided him with his Miranda Warnings, right to remain silent and so forth, before the statement was given. [J.V.] does not deny that that was provided to him, but he says that you should ignore the statement, you should not consider it, because it was fed to him by the police officers.

The officers have said that's not so. That this is a product of [J.V.] alone. So, in considering whether or not that statement is credible, you should take into consideration the circumstances and facts as how the statement was made, as well as all other evidence in this case relating to this issue.

After the consideration of all of these factors, if you determine the statement was not actually made, or is not credible, then you must disregard the statement completely. If you find the statement was made, that all or part of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.

This jury charge was based on Model Jury Charge (Criminal), Statements of Defendant - Allegedly Made (1996).

Defendant contends that this instruction was inadequate and that the trial court should have instead followed the model jury charge appropriate for unrecorded statements by a defendant. See Model Jury Charge (Criminal), Statements of Defendant - Police Failed to Electronically Record (2005). That charge was not requested.

Here, defendant did not object to the jury instructions as they were given. Therefore, the standard of review for this appellate court is that of plain error. This court previously found no plain error when a trial judge applied controlling case law and recited verbatim the appropriate model jury charge. State v. Rodriguez, 365 N.J. Super. 38, 53 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Rule 3:17 "requires electronic recording of interrogations that take place in a place of detention . . . [and] [p]rovides that failure of recording constitutes a circumstance to be considered by the court in determining admissibility and by the jury in determining credibility." Pressler, Current N.J. Court Rules, comment on R. 3:17. The rule requires a limiting instruction when an unrecorded interrogation is admitted. Ibid.

Rule 3:17 became effective with respect to charges of sexual assault and criminal sexual contact as of January 1, 2007. This trial concluded on July 14, 2006. Therefore, Rule 3:17 was not applicable.

Nonetheless, defendant maintains that the trial judge should have used jury instructions similar to the ones he proposes now because the circumstances surrounding defendant's statement and interrogation were suspicious.

Before Rule 3:17 became effective, "whether a statement is memorialized or not is but a factor contributing to the overall determination of a statement's voluntariness." State v. Cook, 179 N.J. 533, 552 (2004). A jury should be "charged to treat an oral confession with caution, and to judge its credibility against the circumstances of its elicitation." Ibid. Our Supreme Court warned "[t]here are inherent weaknesses in this character of [oral] testimony: faulty memory, the danger of error in understanding and repetitions." State v. Kociolek, 23 N.J. 400, 421 (1957). Thus, "verbal admissions . . . are received with caution." Ibid. The Court noted that in determining whether a confession is voluntary, "circumstances of the interrogation, including the conduct of the police" are factors to be weighed. State v. Burris, 145 N.J. 509, 534 (1996).

Here, the court properly instructed the jury. The judge's charge to the jury on defendant's statement complied with the law at the time of trial. The applicable Model Jury Charge at the time of the trial was provided. The trial judge cautioned the jury to weigh the credibility of defendant's recorded recitation and written statement, keeping in mind the circumstances surrounding how the statement was made and other evidence supporting defendant's statement. Furthermore, the trial judge warned the jury that faulty memory can change the meaning of an oral communication. The trial judge followed the then-existing case law when he charged the jury with instructions for evaluation of defendant's statement. Defendant, citing a number of cases, asserts that the judge's instructions led to an unfair trial. See State v. Concepcion, 111 N.J. 373, 379 (1998); State v. Brown, 138 N.J. 481, 552 (1994); State v. Martin, 119 N.J. 2, 5 (1990); State v. Grunow, 102 N.J. 133, 148 (1986); State v. Harmon, 104 N.J. 189, 192 (1986); State v. Simon, 79 N.J. 191, 206 (1979). A review of these cases demonstrates that the trial judges charged the respective juries with improper instructions relating to the elements of a crime, misstated the burden of proof, provided the jury with special interrogatories when they should not have, or omitted key circumstances. Not so here. The trial judge correctly instructed the jury pursuant to the applicable model jury charges and consistent with controlling precedent. No unjust verdict resulted.

IV.

Defendant contends in Point III that his thirty-year prison term, eighty-five percent without parole, was excessive. Defendant asserts that the judge unduly emphasized the aggravating factor of general deterrence at sentencing. Defendant also argues the judge did not recognize that defendant's sentence extended his parole ineligibility beyond the length of defendant's sentence if he had just been sentenced for a first-degree crime and denied an extended term sentence.

Defendant had three prior convictions after turning twenty-one years old, prior to this trial. The trial court declared that defendant was classified as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and granted the State's motion for an extended term sentence. Defendant does not contest his eligibility for an extended term treatment, nor does he contend that the application should not have been granted.

An extended term sentence's spectrum begins at the minimum of the ordinary-term range and concludes at the maximum of the extended-term range. State v. Pierce, 188 N.J. 155, 170 (2006). The court's decision to sentence a defendant within that range "remains in the sound judgment of the court subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Id. at 169-70.

When a court considers a defendant's risk of recidivism, the seriousness and extent of a defendant's prior record, and specific and general deterrence, the sentencing court must qualitatively assess the defendant. State v. Thomas, 188 N.J. 137, 153 (2006). This assessment "involve[s] determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." Ibid.

In this case, the trial court opined that an appropriate sentence for defendant's first-degree aggravated sexual assault offense would be fifteen years. However, the court decided to impose an extended term sentence. In doing so, the trial court found three aggravating factors applied to defendant: risk of another offense (factor three), the extent and seriousness of defendant's prior record (factor six), and deterrence (factor nine). Defendant had three convictions prior to this trial. The court evaluated and judged defendant "in light of his history" and found defendant was at risk for recidivism. Ibid. The judge also stated that "[t]he world has to know that if you sexually assault your teenage stepdaughter that the penalty will be severe and that the person who commits the act will be out of society for an extended period of time." The trial court sought to deter society when he sentenced defendant. The same aggravating factors support the length of defendant's parole ineligibility.

Notwithstanding, defendant argues that deterrence should only be used as an aggravating factor when a special need is demonstrated to deter a particular defendant. Additionally, defendant contends that general deterrence alone is insufficient as an aggravating factor, relying on State v. Gardner, 113 N.J. 510 (1989). There, the Supreme Court noted that the lower court erred in finding only general deterrence sufficient to overcome the presumption against imprisonment. Id. at 520. Unlike Gardner, where defendant had no prior record, Id. at 514, defendant had three prior convictions. The trial judge referred to defendant as a "criminal" based on his prior conduct. The trial court properly sought to deter defendant from committing any further crimes.

Defendant further contends that the trial judge impermissibly double-counted general deterrence as an aggravating factor because all crimes need to be deterred. Defendant relies on a series of cases that state that an essential element of a defendant's crime may not be counted as an aggravating factor for sentencing. See State v. Kromphold, 162 N.J. 345, 353 (2000); Gardner, supra, 113 N.J. at 519; State v. Jarbath, 114 N.J. 394, 404 (1989); State v. Miller, 108 N.J. 112, 122 (1987).

Defendant's sentence was not based on an essential element of the offenses. Rather, prior to sentencing defendant, the trial judge explained, B.M. "couldn't participate in after school activities. She couldn't live a normal life of a 13 year old or a 14 year old without the [defendant's permission]

. . . . And that permission was not given without a price

. . ., to perform sexual favors for him." The trial court took full account of the circumstances surrounding defendant's offenses and defendant's prior record and did not rely on specific elements of the offense.

We are convinced that there was no abuse of sentencing discretion by the trial court; that the record supports the trial court's findings on aggravating and no mitigating factors; and that the sentence imposed does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

 
The judgment of conviction and sentence are affirmed.

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

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Cofield, 127 N.J. 328, 338 (1992).

(continued)

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41

A-2261-06T4

RECORD IMPOUNDED

November 2, 2009