STATE OF NEW JERSEY v. D.M.A

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3931-06T43931-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.M.A.,

Defendant-Appellant.

__________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1164.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant D.M.A. of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count six); fourth-degree sexual contact, N.J.S.A. 2C:14-3(b) (count seven); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts eight and nine); and fourth-degree child abuse, N.J.S.A. 9:6-3. The jury acquitted defendant of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), c(3) and c(4).

Defendant was sentenced to eight years imprisonment, subject to the eighty-five percent period of parole ineligibility required by the No Early Release Act, N.J.S.A. 2C:43-7.2 on count two, a four-year consecutive term of imprisonment on count six, a concurrent eighteen-month term on count seven, a consecutive eight-year term on count eight, and a concurrent eight-year term on count nine after the merger of count ten into count nine. Applicable fines and penalties were imposed.

On appeal, defendant presents the following issues for our review:

POINT I:

THE JURY INSTRUCTION ON FRESH COMPLAINT UNCONSTITUIONALLY INTRUDED ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TOLD THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT [THE ALLEGED VICTIM'S] TESTIMONY IS UNTRUTHFUL BASED ONLY ON HER SILENCE OR DELAYED DISCLOSURE"; MOREOVER, THAT SAME FRESH COMPLAINT INSTRUCTION ERRED WHEN IT DID NOT EXPLAIN TO THE JURY THAT THE EXTREME DELAY IN REPORTING THE ABUSE TO ANOTHER WAS A PROPER FACTOR TO CONSIDER AGAINST THE CREDIBILITY OF THE ALLEGED VICTIM.

POINT II:

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE, AND NO REASONS WERE GIVEN AT ALL FOR THE IMPOSITION OF CONSECUTIVE SENTENCES FOR SEXUAL ASSUALT AND ENDANGERING THE WELFARE OF A CHILD.

We reject the argument set forth in Point I and affirm defendant's conviction. However, we agree the sentencing was flawed, requiring that we vacate defendant's sentence and remand the matter to the trial court for resentencing.

We summarize the evidence introduced by the State at trial. A.A., who was born in Jamaica, came to the United States at the age of seven to live in Orange with defendant, defendant's sister, S.A. and her children. Both A.A. and defendant believed he was her biological father. Thereafter, the family moved to Summit. During the weekday, defendant held two jobs in New York City. On some evenings, A.A. stayed with defendant and slept at his place of employment. When A.A. was eleven, she and defendant moved to their own two-bedroom home in Summit. Because defendant continued to work two jobs, during the week A.A. would sometimes stay with her aunt or accompany defendant to his evening employment. Defendant was home on the weekends.

Defendant began making sexual gestures toward A.A., suggesting she "looked sexy," smacking her "behind" and asking her to try on clothing that he purchased, such as jeans, shirts, and bras. A.A. admitted she did not protest or object to defendant's conduct. On one occasion, A.A. developed a yeast infection, and defendant asked to watch her shower and apply the vaginal medication. A.A. felt "violated" and "embarrassed," but acceded to defendant's requests because she felt "scared and thought it wouldn't happen again."

Before A.A.'s twelfth birthday, V.A., a girlfriend of defendant, who agreed to care for A.A., and her ten-year-old daughter S.S. moved into defendant's home. V.A. slept in the downstairs bedroom and her daughter slept with A.A. in the upstairs bedroom. V.A. cared for A.A. while defendant worked in New York. A.A. visited defendant at his job when she did not have school the following day; she recalls she only stayed overnight one evening.

Defendant continued making sexual gestures toward A.A. when V.A. was not present. One evening, while S.S. was asleep, defendant entered A.A.'s bedroom. He "groped her breasts" and touched her vagina over her clothing. A.A. stated she was scared and told defendant to stop. He complied and left her room. A.A. did not reveal this incident. Two weeks later, defendant repeated similar sexual contact one weekday when he was not working. A.A. requested defendant stop, and he replied he was "going to do this for awhile." The incident lasted ten to fifteen minutes. A.A. did not tell anyone because she was "scared." Thereafter, defendant regularly committed similar assaultive acts on the weekends, and then began touching A.A. underneath her clothing.

While living in defendant's home, V.A. heard defendant go upstairs to A.A.'s room late at night and, on several occasions, noticed defendant was missing from his sofa bed in the middle of the night. V.A. once saw A.A. laying in bed between defendant and S.S. Approximately one month following the first touching incident, V.A. requested S.S. to sleep downstairs with her, rather than upstairs with A.A., on the weekends when defendant was home. In the summer 2001, V.A. and S.S. left defendant's residence. A.A. stayed with her aunt in Georgia for one month. For the remainder of the summer weekdays, she stayed with her aunt in Summit or at defendant's job. The touching incidents continued.

Prior to A.A.'s thirteenth birthday, A.T., an acquaintance of defendant, and her children moved into defendant's house. Y.T., A.T.'s twenty-one-year-old daughter, shared a bedroom with A.A. Defendant did not touch A.A. while she shared her room with Y.T. One evening, while A.A. slept at defendant's place of employment, he groped her breasts and vaginal area. That evening, he also removed her clothing and rubbed his penis against her vagina. A.A. was crying and told defendant to stop. Instead, he attempted to perform cunnilingus. Defendant was unsuccessful because A.A. resisted. The incident lasted approximately twenty minutes. A.A. did not disclose the assault because she was afraid "no one would believe" her.

Y.T. left defendant's house and within a few weeks, defendant resumed entering A.A.'s bedroom, touching her and rubbing his penis against her vagina. The assaults were repeated on subsequent weekends.

Following A.A.'s fifteenth birthday, on weekends when A.T. was not home, defendant began penetrating A.A.'s vagina with his fingers, while he masturbated. On five occasions defendant asked A.A. to perform, and he received, fellatio in exchange for privileges. The first time this occurred, defendant allowed A.A. to attend a party. Defendant also performed cunnilingus on A.A. five or six times. A.A. mentioned the abuse to someone, but did not identify defendant as the abuser because she feared being placed in foster care. A.T. and her children moved from defendant's residence shortly after the first oral sex incident.

Defendant stopped working his second job. Thereafter, the above described acts of sexual assault occurred almost every day. Defendant's routine included running on a treadmill for thirty minutes at 3 a.m., directly followed by molestation of A.A. On one occasion, while defendant rubbed his penis against A.A.'s vagina, he ejaculated on her pajamas. During this time, if A.A. resisted, defendant slapped and punched her body and face. A.A. acknowledged she did not resist every time because she "knew he was going to end up getting it in the end anyway[]."

On June 17, 2005, A.A. spent the evening with her friend, Q.B., and arrived home at 10 p.m. Defendant was not home, but A.A. noticed her room was "out of place." She changed her clothes and telephoned defendant, advising she was home. When he arrived, defendant forced A.A. to rechange her clothing to wear what she had worn that evening, then he repeatedly struck her face, arms and back. Defendant also struck A.A. with a cordless telephone and a shoe, and told her to "get the fuck out of [his] house" because it was her "last night there." A.A. left because defendant threatened to "fucking kill her." She went to Q.B.'s home and related the details of defendant's assault that evening as well as the past years of molestation.

The following day, A.A. repeated the information to the police. Detective Thomas Rich spoke with A.A. and Q.B. from 2 p.m. to 7:30 p.m. He noticed A.A.'s face and arms were bruised and cut. When the interview concluded and A.A. left, Rich called defendant requesting he come to the police station.

Defendant arrived and was arrested. Defendant was informed of the charges based on A.A.'s statement and Mirandized. Initially, defendant admitted he physically punished A.A. for having guests at the house without permission and then lying about that fact. He consistently denied any sexual contact with A.A., including calling her "sexy" or touching her behind.

Rich typed defendant's custodial statement, based on an interview held later that evening, which the defendant signed. In that statement, defendant admitted disciplining A.A. by holding her down with his knees, while she was naked, and slapping her in the face. He also acknowledged his penis might have rubbed against her vagina, through his underwear, while he was on top of her.

At trial, Q.B. testified to what A.A. told her about the years of prior abuse. Under direct examination, A.A. acknowledged she saw V.A. and A.T. after they moved from the Summit residence but never told them about defendant's sexual abuse. Also, A.A. did not disclose the abuse to her aunt in Georgia, her mother, or her teachers, except for one counselor to whom she revealed she experienced problems at home. A.A. admitted her first full disclosure was to Q.B. on June 17, 2005.

Defendant testified on his own behalf, denying any abuse of his daughter. He asserted the custodial statement was the product of coercion. He stated that, after he denied the allegations made by A.A., he was placed in a holding cell. When he was removed, he was interrogated for a second time by Rich. In the interrogation room, Rich stared at defendant, and when defendant averted his eyes, Rich "punched [him] in the chest several times." Rich then took him to another area and began typing while he questioned defendant. The typed statement did not accurately reflect defendant's responses. Defendant made some corrections then signed the statement.

The jury was charged and during deliberations posed several questions, which were answered with counsel's consent. The verdict was returned, as set forth above, convicting defendant on six of the ten charges.

On appeal, for the first time, defendant argues the trial judge's instructions as to the limited use of fresh complaint evidence was erroneous as it improperly intruded on the jury's function to determine A.A.'s credibility with regard to the delay in disclosure of the sexual assaults. Defendant does not challenge the admissibility of the evidence of the disclosure, but rather the nature of the instruction on the consideration of the evidence. Additionally, relying on State v. Concepcion, 111 N.J. 373, 379 (1988), defendant suggests the jury charge "made no attempt to tailor the instruction to the facts of the case."

Correct jury charges are essential to a fair trial. In examining defendant's challenges, we must read and review the jury charge in its entirety. State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). Additionally, since there was no objection to the jury instructions, as given, we review defendant's challenges under the plain error standard. R. 2:10-2. To find plain error in respect of the court's jury instructions, we must discern a "legal impropriety . . . prejudicially affecting the substantial rights of the defendant," which is "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Q.B.'s testimony was received under what has become known as the "fresh complaint" doctrine, which allows the State, in a sexual abuse prosecution, to introduce evidence a victim voluntarily and "spontaneously complained of the crime within a reasonable amount of time to someone the victim would normally turn to for help and advice." State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.) (citing State v. Hill, 121 N.J. 150, 163 (1990)), certif. denied, 151 N.J. 466 (1997). "[T]he mistaken perception that a victim will report a sexual assault immediately has proven to be one of the most refractory of modern jurisprudence." State v. P.H., 178 N.J. 378, 392 (2004). The "fresh complaint" doctrine is an attempt to address the timing of disclosure by allowing testimony of the revelation to negate a possible negative inference drawn by a jury that the victim was not sexually assaulted because she did not immediately complain. Hill, supra, 121 N.J. at 164; Scherzer, supra, 301 N.J. Super. at 419. While evidence of belated disclosure does not give rise to a presumption of fabrication, it may be considered a part of the totality of circumstances in assessing credibility. P.H., supra, 178 N.J. at 396-97.

The judge plainly told the jury Q.B.'s testimony was not presented to "bolster the victim's or alleged victim's credibility or to prove the truth of the charges but, rather, only to dispel the inference that the alleged victim was silent." Following the language of the then Model Charge on fresh complaint, the judge continued his instruction this way:

The law recognizes that stereotypes about sexual assault complaints may lead some of you to question a complaining witness' credibility based solely on the fact that she did not complain about the alleged abuse sooner. You may not automatically conclude that the complaining witness' testimony is untruthful based only on her silence or delayed disclosure. Rather, you may consider the silence or delayed disclosure along with the other evidence including her explanation for her silence or delayed disclosure when you decide how much weight to afford her testimony.

The charge also generally addressed credibility and told the jury it must determine all of the facts.

Defendant hones in on the language of one sentence in the charge. Specifically, he objects to this statement as improper: "You may not automatically conclude that the complaining witness' testimony is untruthful based only on her silence or delayed disclosure." Defendant contends all credibility determinations are permissive; however, the language used is mandatory, dictating the jury's determination. He supports his argument by noting the Model Charge on "fresh complaint" was revised significantly on February 5, 2007, and has removed the phrase "you may not automatically conclude" when instructing the jury on the use of the evidence.

We reject defendant's contention. The charge, as given, in no way mandates a conclusion to accept A.A.'s testimony as credible. In fact, it does the opposite. The statement to which defendant objects posits the legally permissible basis for admission of Q.B.'s testimony--that is, to neutralize any presumption that no assault occurred due to the delayed disclosure. The modified Model Charge expresses this principal in a more detailed fashion, however, this does not suggest the former charge used was error.

Our review of the entire charge satisfies us that in instructing the jury on fresh complaint testimony, the trial judge properly recited the law, including that applicable to A.A.'s delay in reporting. The jury was told and understood it could consider the delayed disclosure in assessing A.A.'s credibility, but the delay, in and of itself, was not inconsistent with a claim of abuse. P.H., supra, 178 N.J. at 396-97.

The defense challenged A.A.'s credibility in extensive cross-examination. She admitted her father was strict, she did not like his rules, and did not like his punishments when she disobeyed the rules. Moreover, in closing, the defense highlighted the lateness of the disclosure and the possibility of fabrication. The jury charge made very clear that the jury was free to accept or reject A.A.'s testimony regarding the abuse or defendant's testimony regarding A.A.'s motivation and his innocence. The jury carefully considered all of the evidence. It sought read-backs of testimony and posed questions. The verdict reached acquitted defendant of the most significant charges in the indictment. We conclude no error occurred.

During sentencing, the trial judge determined "aggravating factors three [the risk of committing other offenses] and nine [the need for deterrence] outweigh[ed] the mitigating factor seven [no prior criminal offenses]." The trial judge concluded the second-degree sexual assault did not merge with the second-degree endangering conviction because the offenses occurred during a "different time period."

In imposing the four-year term on count six for third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a), and the eight-year term on the conviction for second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), the court required the sentences be consecutive to that imposed on count two.

Defendant argues, and the State concedes, the trial judge's failure to articulate the basis for the consecutive sentences was error. Defendant also states the judge's findings regarding the weight accorded the aggravating and mitigating factors was insufficient. He seeks a remand for resentencing, a position the State does not oppose.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). "[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); R. 3:21-4(e). When reviewing the propriety of a sentence, we make sure the sentencing guidelines were met, the findings on aggravating and mitigating factors were based upon "'competent credible evidence in the record,'" and the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting Roth, supra, 95 N.J. at 364-65).

Additionally, we note, "[u]nder our sentencing scheme, there is no presumption in favor of concurrent sentences[.]" State v. Abdullah, 184 N.J. 497, 513 (2005). The decision to set consecutive sentences is within the trial court's discretion. Ibid.; N.J.S.A. 2C:44-5(a). In exercising that discretion, the trial court is guided by the Yarbough criteria. State v. Miller, 108 N.J. 112, 121-22 (1987). Those criteria are as follows:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Yarbough, supra, 100 N.J. at 643-44 (footnotes omitted from criteria 3(e) and 6).]

Here, the trial judge failed to articulate the basis of the sentences imposed and gave no reasons for the imposition of consecutive sentences on counts six and eight. We do not attempt to speculate as to the court's reasoning. State v. Kruse, 105 N.J. 354, 360 (1987). Thus, we vacate defendant's sentence and remand the matter to the trial court for the purposes of resentencing.

 
Affirmed in part and reversed in part.

At the time of the trial, A.A., then seventeen, was informed the results of a paternity test confirmed D.M.A. was not her biological father.

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

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

A 1993 amendment to N.J.S.A. 2C:44-5(a), changed criterion six by allowing unlimited accumulation of consecutive sentences. L. 1993, c. 223.

(continued)

(continued)

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A-3931-06T4

RECORD IMPOUNDED

October 20, 2009