STATE OF NEW JERSEY v. V.C

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3810-06T43810-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.C.,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0267.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, V.C., appeals from his July 28, 2006 conviction, following a trial by jury, on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four). After merging count two into count one, the judge sentenced defendant on count one to a fifteen-year term of imprisonment subject to a twelve-year, nine-month parole ineligibility term. On count three, the judge imposed a consecutive seven-year term of imprisonment. Appropriate fines and penalties were imposed. We reverse.

I.

When F.P. was approximately eleven years old, her mother, L.C., married defendant, V.C. According to F.P.'s trial testimony, defendant started sneaking into her bedroom, and into her bed, when she was approximately thirteen years old. According to F.P.'s testimony, while her mother was either sleeping or working overtime, F.P. was awakened by defendant putting his hand under her pajama shirt and touching her breasts. Defendant also pulled down her pajama pants and touched the outside of her vagina. He said nothing to her while he was doing this and she said nothing to him. Instead, F.P. attempted to "kick him out" of her room by pretending she was still sleeping, but thrashing about in a way that would force him out of her bed. According to F.P., defendant came into her bed and molested her two to three times per week.

F.P. also testified that at some point defendant began to insert his fingers into her vagina. When asked how many times he had done so, F.P. answered "around 10," and that he had been doing so "like almost a year."

When asked whether she told her mother, F.P. said no. She explained that she was "embarrassed" and "didn't know how to tell [her] mom that her husband was molesting her daughter. I didn't want to hurt her."

F.P. testified that her silence continued until October 6, 2003. That night, while defendant was away on an extended trip out-of-state, her mother asked her whether defendant had been molesting her. F.P. initially answered no because she was "scared" and "nervous." Her mother then went to take a shower. As soon as her mother emerged, F.P. changed her mind and told her mother what defendant had been doing for the past year. The next morning, L.C. took F.P. to the local police station to file a complaint.

On cross-examination, F.P. conceded that the conduct in question had been "going on week after week for 104 weeks," without F.P. telling anybody. F.P. also conceded that defendant was a "tough step-dad" who "had a temper" and "[s]ometimes . . . wasn't very pleasant to be around." She also acknowledged that although L.C. had caught defendant sleeping in her bed on one occasion, L.C. merely told defendant not to repeat such conduct.

The State's next witness was L.C., who obtained a divorce from defendant shortly before the commencement of the trial. Before the State called L.C. to the stand, the judge conducted a N.J.R.E. 104(a) hearing outside the presence of the jury to determine whether L.C.'s testimony describing her conversation with her daughter qualified as fresh-complaint evidence under State v. Bethune, 121 N.J. 137, 144-45 (1990). The judge concluded that the testimony of L.C. so qualified; however, there was no discussion during the hearing of the limiting instruction that Bethune requires.

Before the jury, L.C. testified that there were occasions during her marriage to defendant when she awakened in the morning to find him asleep in F.P.'s bed. L.C. testified that on October 6, 2003, after defendant had left for Kansas to train for a new job, she asked F.P. "if [defendant] ever touched her." Without the defense requesting a limiting instruction or objecting to the scope of her testimony, L.C. described her conversation with F.P. as follows:

Q. What did you ask [F.P.]?

A. I asked her if he ever touched her.

Q. When did you ask her that?

A. October 6th.

Q. Of 2003?

A. Yes.

. . . .

Q. And what was your response to her telling you that he had touched her?

A. I said, "he touched you where?" She said, "Up my shirt and down my pants." And I said, "How many times?" And she said, "A lot."

Q. Did you have any more questions for her that night after [she] told you that he went up her shirt and down her pants a lot?

A. I asked her if he touched her with his penis or if he made her touch his penis. And that was it. She said no.

Q. How did that conversation conclude? . . .

A. I hugged her and told her I was sorry and that I loved her.

. . . .

Q. What, if anything, did you do the next day, October 7, 2003?

A. The next day we went to the police station.

. . . .

Q. At any point did you specifically ask [your daughter] what parts of her body her step-father touched?

A. The only answer she gave me was up her shirt and down her pants. I didn't ask her anymore after that. That was all I needed to hear.

On cross-examination, L.C. was asked why she had waited until October 6, 2003 to make an inquiry of her daughter when she had seen defendant in her daughter's bed as early as six months before. She responded that she assumed if there had been a continuing problem, her daughter would have told her. She also described defendant's response when she asked him why he was not sleeping in the marital bed. According to L.C., he answered "'because [the younger children] are in our bed.' That was his excuse." She testified defendant claimed that sleeping in the crowded bed exacerbated a prior neck injury and that he also claimed he was unable to sleep in the younger children's bedroom because it was too cold. According to L.C., defendant stated he was left with no alternative other than sleeping in F.P.'s bed.

The State's next witness was James Smith, a detective in the Berkeley Township Police Department. He testified that after he was notified by the Ocean County Prosecutor's Office of F.P.'s allegations, he contacted defendant. After administering Miranda warnings, Smith told defendant that his step-daughter had accused him of sleeping in bed with her, touching her breasts and penetrating her vagina with his fingers. According to Smith, defendant began to cry, and denied F.P.'s allegations. Smith explained that he and defendant "got speaking about the appearance of laying in the bed with a young girl being a grown man." According to Smith, defendant admitted sleeping in F.P.'s bed, stating "I know it is f---ed up." Smith explained that those were defendant's exact words.

Smith's testimony about defendant sleeping in F.P.'s bed echoed that of L.C. According to Smith, defendant justified his practice of sleeping in bed with his step-daughter by explaining that he became upset when the two younger children refused to sleep in their new beds but instead began to sleep in the bed with him and L.C. According to Smith, defendant insisted that he "had a bad neck and . . . couldn't sleep in bed with all them [sic] people. So to prove a point to his wife, he would sleep in [F.P.'s] bed with [F.P.]." When Smith asked defendant to repeat his remarks during a formal taped interview, defendant refused.

The State's final witness was Ocean County Prosecutor's Office Investigator Colleen Lynch. Lynch testified that after Detective Smith contacted her, she arranged to take formal statements from F.P. and L.C. Without objection, Lynch explained her October 7, 2003 conversation with L.C., in which L.C. described her conversation with F.P. the day before.

Lynch then testified concerning her October 7, 2003 interview of F.P. In response to the prosecutor's question, Lynch testified that F.P. told her defendant had "been touching her under her clothing for a number of years . . . . On her breasts as well as her buttocks." Lynch testified that F.P. said defendant's conduct had occurred while he was sleeping in her bed. When Lynch was asked whether she had questioned F.P. about the extent to which defendant touched her vagina, Lynch answered "yes, I did." She testified as follows:

Q. And what, if anything, did [F.P.] say to you?

A. She advised me that he would put his fingers inside of her vagina.

Q. Did she estimate for you about how many times this occurred?

A. I believe she estimated it was approximately ten times.

Q. Did she describe to you the frequency this happened?

A. Yes, she did.

Q. And what was that?

A. Very often.

Defendant rested without testifying and without calling any witnesses. If a charge conference occurred, it was not conducted on the record.

During the judge's charge to the jury, he did not instruct the jury, as Bethune, supra, requires, concerning "the limited role that fresh-complaint evidence should play in [the jury's] consideration of the case." 121 N.J. at 148. In particular, the judge did not inform the jury that "a fresh-complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges, but merely dispels the inference that the victim was silent." Ibid. At the conclusion of the judge's charge, he asked both sides whether there were any objections to the charge as given. Both lawyers answered "no."

Not until defendant filed his motion for a new trial a month after the jury verdict, did he raise the judge's failure to issue the limiting instruction that Bethune requires. The judge denied the motion and proceeded to sentencing. On appeal, defendant raises the following claims:

I. THE TRIAL COURT NEVER INSTRUCTED THE JURY AS TO HOW IT SHOULD EVALUATE THE "FRESH-COMPLAINT" TESTIMONY OF L.[C.], DENYING THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partially Raised Below)

II. THE PREJUDICE TO DEFENDANT WAS COMPOUNDED BY [THE] PROSECUTOR'S IMPROPER USE OF "FRESH-COMPLAINT" TESTIMONY, AND THE HEARSAY TESTIMONY OF LYNCH, WHICH CORROBORATED [THE] EXISTENCE AND SUBSTANCE OF "FRESH-COMPLAINT." (Not Raised Below)

III. THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.

II.

We turn first to Point I, in which defendant argues that the judge's failure to issue a limiting instruction concerning the fresh-complaint testimony of L.C. denied him a fair trial. In particular, defendant points to the trial judge's: 1) omission of a limiting instruction at the time of L.C.'s testimony, explaining that such fresh-complaint testimony could not be used as substantive evidence to establish that defendant had committed the offenses in question; 2) failure to so charge the jury during the final instructions; and 3) failure to confine the fresh-complaint testimony to that which was minimally necessary to identify the conduct in question. Because defendant failed to object to these omissions at the time of trial, any such error will be disregarded on appeal unless it was "clearly capable of producing an unjust result." R. 2:10-2.

The fresh-complaint rule evolved at common law as an exception to the hearsay rule, and allows the State "to show in a sexual abuse prosecution that the victim complained of the act within a reasonable time to one to whom she would ordinarily turn for sympathy, protection or advice." State v. J.S., 222 N.J. Super. 247, 251 (App. Div.), certif. denied, 111 N.J. 588 (1988). The purpose of the rule is to "negate the inference that the victim was not sexually assaulted" because he or she was silent. State v. Hill, 121 N.J. 150, 163 (1990).

The importance of a limiting instruction concerning a jury's use of fresh-complaint testimony was emphasized in J.S., where we held that the trial judge is required to inform the jury "that the [fresh-complaint] testimony was allowed only to show that within a reasonable time the victim reported the criminal event to one in whom she would naturally confide under the circumstances, not for the truth of the victim's complaint." 222 N.J. Super. at 257. We held that judges must explain to the jury that fresh-complaint testimony "enables the State to meet in advance the internal contradiction which might appear from an apparent failure of the victim to make such a complaint." Ibid. Consequently, the jury must be informed that "its use [of such testimony] is confined to neutralizing the inference that might otherwise be drawn that [the alleged victim's] behavior was inconsistent with a claim of sexual abuse." Ibid. We also insisted in J.S. that, to avoid unnecessarily bolstering or reinforcing the alleged victim's testimony, the fresh-complaint evidence should "be confined to those [details] minimally necessary to identify the subject matter of the victim's complaint," but must go no further. Ibid. The Court reinforced those requirements two years later in Bethune, supra, 121 N.J. at 144-45.

Here, the judge did not issue the limiting instruction that J.S. and Bethune require, nor did the judge limit the testimony to that which was "minimally necessary" to identify the subject matter of the complaint. The State agrees that the judge failed to issue the required limiting instruction; however, the State maintains that the judge's error was harmless because L.C.'s hearsay testimony describing her conversation with her daughter would have been admissible in any event under N.J.R.E. 607 and 803(a)(2).

In relevant part, N.J.R.E. 607 permits the party calling a witness to support the credibility of that witness by introducing evidence of a prior consistent statement "to rebut an express or implied charge against the witness of recent fabrication or of improper . . . motive[.]" Similarly, N.J.R.E. 803(a)(2) specifies that a statement previously made by a person who is a witness at trial is admissible despite its hearsay nature if such hearsay statement is "consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive[.]"

The State contends that the defense mounted an aggressive challenge to the credibility of both F.P. and L.C. when the defense asserted that the two concocted a false allegation of sexual abuse against defendant both to remove him from the home because he was an overbearing bully and to avoid having to move with defendant to Kansas. The State maintains that in light of that attack on the motives of F.P. and L.C., N.J.R.E. 607 and 803(a)(2) would permit the State to introduce through L.C. the hearsay testimony of F.P.'s alleged October 6, 2003 disclosures. The State argues that these two Rules together permit such testimony to be offered free of the limitations imposed by Bethune, supra, 121 N.J. at 144-45. We disagree. Such a construction of these two evidence rules would--in all cases where the alleged victim's motive was attacked--entirely eviscerate the requirement that a limiting instruction be given. Our common experience informs us that attacks on the alleged victim's motives are presented in a significant number of child sexual assault prosecutions.

Consequently, were we to accept the State's contention that the fresh-complaint testimony here was admissible because of N.J.R.E. 607 and 803(a)(2)--even in the absence of a limiting instruction--we would essentially be creating two categories of sexual assault prosecutions. In one category, where the victim's motives are attacked, no limiting instruction would be required. In the second category, where the alleged victim's motives are not challenged, a limiting instruction would be required. We therefore decline the State's invitation to parse the Bethune requirement of a limiting instruction in the fashion the State proposes. We are unwilling to so blithely dispense with Bethune's requirements. Accordingly, unless the error here was harmless, a reversal is required. Ibid.; see also R. 2:10-2.

We turn to an analysis of whether the violation of Bethune's requirements was harmless. In Bethune, the Court chose to disregard a substantial flaw in the judge's fresh-complaint jury instruction, because there was "much other evidence to corroborate the child's complaint[.]" 121 N.J. at 149. We do not reach the same conclusion here.

F.P.'s allegations were not directly supported by any other evidence. We recognize that two witnesses--L.C. and Detective Smith, who had personally spoken with defendant--testified to the numerous occasions on which defendant slept overnight in the bed of his step-daughter, F.P., who was then thirteen-years old. Detective Smith's trial testimony described in considerable detail defendant's admission that he frequently slept in F.P.'s bed, and Smith quoted word-for-word defendant's acknowledgment that doing so was "f---ed up." The jury also heard defendant's rather questionable justifications for doing so: a sore neck, the other bedroom was too cold, and the marital bed was crowded. However, climbing into his step-daughter's bed certainly does not establish that defendant sexually assaulted her. Although F.P.'s testimony was unwavering, the defense vigorously attacked her credibility by arguing that: V.C. was an overbearing and controlling person whom both F.P. and L.C. were anxious to remove from their lives; neither F.P. nor L.C. wanted to move to Kansas with defendant; L.C. waited an unreasonably long time after she first saw defendant sleeping in F.P.'s bed before she asked F.P. if defendant was molesting her; and F.P. told no one that defendant was sexually assaulting her until her mother asked her a direct question at least a year after the abuse began.

Under those circumstances, we cannot ignore the strong possibility that the jury--which was not given a limiting instruction--used the very detailed and highly damaging fresh complaint testimony to help resolve the credibility issue. The fresh complaint testimony may well have been used by the jury as substantive evidence of defendant's guilt, thereby tipping the scales in the State's favor. The judge's failure to issue the limiting instruction that Bethune requires, in combination with the excessive detail of L.C.'s and Lynch's testimony, which Bethune prohibits, leads to the conclusion that these errors were clearly capable of producing an unjust result. R. 2:10-2. It is unfortunate that neither side asked the judge to issue the limiting instruction that Bethune requires. Had they done so, "[t]hat would have given the judge an opportunity to react, to instruct the jury properly, and perhaps, to avoid the piling on that occurred." State v. Vallejo, ____ N.J. ___, ___ (2009) (slip op. at 21). Because of the absence of the limiting instruction, "we have no alternative but to assume that the jurors took into account all of what transpired at trial," id. at 22, and used the fresh complaint testimony as substantive evidence of defendant's guilt. Consequently, we are constrained to reverse defendant's conviction and remand for a new trial.

III.

In light of that dispostion, we need not address defendant's remaining arguments.

Reversed.

The judgment of conviction erroneously lists criminal sexual contact as a third-degree crime.

After the divorce, L.C. became known as L.R. For the sake of simplicity, we refer to her as L.C.

Although F.P. testified that she was ten years old when defendant's behavior began, the balance of her testimony, including her description of her grade at school, demonstrates that she was approximately thirteen years old, rather than ten years old. The indictment specifies that she was thirteen-years old.

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

As a threshold matter, we reject defendant's attempt to circumvent the more stringent plain error standard by arguing that because he raised the Bethune issue during his motion for a new trial, he preserved it for appellate review. That argument is meritless. Any claim of error will be evaluated under the plain error standard unless defendant raised an objection in a timely manner that afforded the trial judge the opportunity to make a correction. State v. Macon, 57 N.J. 325, 333 (1971). Here, where defendant waited until the trial was long over before he raised this claim, unquestionably the plain error standard during the trial applies because the judge was never afforded the opportunity to rectify the error. Ibid.

(continued)

(continued)

17

A-3810-06T4

RECORD IMPOUNDED

March 25, 2009