STATE OF NEW JERSEY v. R.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3367-07T43367-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.A.,

Defendant-Appellant.

_____________________________________

 

Submitted February 10, 2010 - Decided

Before Judges Stern, Sabatino and Newman.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 06-10-01017.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Karen E.

Truncale, Assistant Deputy Public

Defender, of counsel and on the brief).

Paula T. Dow, Acting Attorney General,

attorney for respondent (Michael J.

Williams, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

On October 26, 2006, a Union County Grand Jury returned Superseding Indictment No. 06-10-01017, charging defendant R.A. with committing first-degree aggravated sexual assault upon A.C. in Rahway between May 1, 2004, and August 31, 2005 (count one); second-degree sexual assault upon A.C. in Rahway between May 1, 2004, and August 31, 2005 (count two); third-degree endangering the welfare of a child, A.C., in Rahway between May 1, 2004, and June 1, 2005 (count three); first-degree aggravated sexual assault upon A.C. between July 17 and 18, 2004, in Princeton (count four); second-degree sexual assault in Princeton upon A.C. between July 17 and 18, 2004 (count five); third-degree endangering welfare of a child, A.C., in Princeton between July 17 and 18, 2004 (count six); first-degree aggravated sexual assault upon A.C. between June 4, 2004 and April 3, 2005 in Franklin/Somerset (count seven); second-degree sexual assault upon A.C. between June 4, 2004, and April 3, 2005, in Franklin/Somerset (count eight); third-degree endangering welfare of a child, A.C., between July 17 and 18, 2004, in Franklin/Somerset, (count nine); first-degree aggravated sexual assault upon S.C. between July 17 and 18, 2004, in Princeton (count ten); second-degree sexual assault in Princeton upon S.C. between July 17 and 18, 2004 (count eleven); and third-degree endangering welfare of a child, S.C., in Princeton between July 17 and 18, 2004 (count twelve).

The jury returned a guilty verdict on all counts of the indictment. The trial court sentenced defendant to an aggregate term of forty-years imprisonment, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentencing court merged counts 2, 3, 5, 6, 8, 9, 11, and 12. Concurrent fifteen years sentences were imposed on counts 1 and 4; a consecutive thirteen-year sentence was imposed on count 7; and a consecutive sentence of twelve years was imposed on count 10.

Defendant appeals. Except to remand to correct the judgment of conviction regarding the fines imposed, we affirm.

I.

The relevant facts shown by the State's proofs may be summarized as follows. In 2004 and 2005, defendant, the boyfriend of D.C., sexually assaulted two of D.C.'s young daughters at different times and in different places. The children, S.C. and A.C., were only six and eight years old when defendant began abusing them.

A.C., nicknamed "Girly," was born in May 1995, and her sister, S.C., was born three years later in May 1998. They lived with their mother and three other siblings in Rahway from 2002 to June 2004. Defendant spent overnights there with the family. When D.C. had to shop, run errands, and take her oldest son to his father's residence in Newark, defendant watched her children.

One night, when A.C. was in second grade and everyone else was sleeping, defendant entered her room where she slept with S.C. and S.C.'s twin sister, R.C. He kissed A.C., unclothed her, placed his penis inside her vagina, and "was moving" on top of her. After a while, defendant got up and just walked out of the children's bedroom without waking up the other two sisters.

Defendant molested A.C. at least three more times in Rahway. One time he told her "I love you," as he again penetrated her vagina with his penis. On another occasion, she fell asleep downstairs, he again penetrated her and touched her vagina and buttocks. On a third time, he carried A.C. from her bed to her mother's bed and again penetrated her vagina with his penis. Afraid that her mother would "put[] . . . [her] out [of] the house," A.C. kept defendant's molestations a secret.

From June 2004 until March 2005, D.C. and her children lived with D.C.'s parents in Scotch Plains. Defendant did not stay there with them. However, on a number of weekends, D.C. and her children would go to nearby hotels to give her parents some respite from the noise and inconvenience fostered by five children in a two-bedroom, one-bathroom home. Defendant would join them. It was at the hotels that defendant again took advantage of A.C. and began molesting S.C.

D.C. and her children stayed at the Marriott Residence Inns in Princeton and Somerset between June 4, 2004 and April 3, 2005.

One of the hotel rooms had an upstairs and a downstairs. D.C. often conducted work on one floor while the children and defendant either were on the other floor or swimming in the hotel pool. On one occasion, defendant sexually assaulted A.C. and S.C. in the hotel bedroom by climbing on top of A.C. and penetrating her vagina with his penis and by performing cunnilingus upon S.C., according to A.C. and not corroborated by S.C. On another occasion, defendant penetrated A.C.'s vagina with his penis.

On a third occasion, defendant took both sisters into the hotel bathroom with him. S.C. did not want to go, but he forced her inside. There, he made both girls "hump" his legs while he smoked a cigarette. Then he unclothed them, touched their vaginas, and penetrated them with his penis. During the extended period of abuse, both girls noticed that defendant had scars or stretch marks on his outer thighs.

In January 2005, D.C. and defendant broke up but remained friends. Two months later, D.C. and her children moved to Honeybrook, Pennsylvania. During the summer of 2005, defendant would visit them there. He again watched the children for D.C. and again sexually assaulted A.C. and S.C. As A.C. explained it, defendant did "the same thing he always did, private in private."

D.C. was scheduled to attend a business trip in late October 2005 in Annapolis, Maryland. She asked defendant if he could watch her children which he agreed to do. D.C. told her five children of the arrangement in early October.

A week before D.C. was to leave for Annapolis, A.C. and S.C. both came to her, with S.C. prodding her older sister, saying "just tell her, Girly, just tell her." A.C. began to cry, asking her mother "can you just punish us now?" When D.C. inquired "punish you for what?," A.C. disclosed that "Uncle R. raped us." When D.C. asked A.C. what she meant by "rape," her ten-year-old daughter replied "like when a man humps on a woman to make her have a baby." A.C. told her mother that defendant had assaulted her and S.C. in Rahway, in the hotels in New Jersey, and in Pennsylvania. Both girls were crying, and S.C. was biting her fingers.

Within minutes of hearing what had happened to her two young daughters, D.C. called defendant. He denied abusing her daughters. When D.C. asked what she should do, he suggested that she go to the police, which she did.

On November 3, 2005, Detective Donna Carroll of the Child Abuse Unit of the Chester County District Attorney's Office Child Abuse Unit interviewed A.C. and S.C. separately. The interviews were videotaped and transcribed. The sisters discussed defendant's attacks upon them. Detective Carroll explained that children's concept of time is different from that of adults.

In the latter part of November 2005, with police assistance, D.C. telephoned defendant in an attempt to get him to confess his crimes. Defendant did not, but he told D.C. that he would "admit," if it helped her get her family back together. He would not call the girls liars.

On February 26, 2006, Detective Stephen McGuire of the Union County Prosecutor's Office's Child Abuse Unit also interviewed the girls on videotape.

On March 15, 2006, police arrived at a Willingboro address during the early morning hours to arrest defendant, but could not locate him. Two hours later at 5:55 a.m., they went to his mother's house in Freehold and told her that they had a warrant for his arrest. Defendant was not at the house.

At trial, defendant testified. Defendant denied sexually assaulting A.C. and S.C., called them liars, but could not explain what would motivate them to lie. He confirmed that he had smoked in hotel room bathrooms and had scars or stretch marks on his legs. Defendant denied that he had any telephone conversations with his mother between February and April 2006.

On rebuttal, Detective McGuire testified that telephone records showed defendant's mother called her son immediately after police questioned her about his whereabouts. On surrebuttal, defendant then recalled having spoken to his mother on March 15, 2006. He admitted that he had not turned himself in because he allegedly needed to earn money to pay for his defense.

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

POINT I

THE COURT SHOULD HAVE EXCLUDED THE HIGHLY PREJUDICIAL VIDEOTAPED STATEMENTS OF THE TWO GIRLS TAKEN IN PENNSYLVANIA UNDER N.J.R.E. 403.

POINT II

THE COURT FAILED TO INSTRUCT THE JURY ON THE USE OF FRESH COMPLAINT TESTIMONY GIVEN BY THE VICTIMS' MOTHER. (NOT RAISED BELOW).

POINT III

IN HIS OPENING STATEMENT, THE PROSECUTOR DESCRIBED THE HIGHLY PREJUDICAL REACTION OF A.C. TO A ANO-GENITAL EXAMINATION THAT WAS SUBSEQUENTLY RULED INADMISSIBLE. (NOT RAISED BELOW).

POINT IV

THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY, DEPRIVING THE DEFENDANT OF A FAIR TRIAL, WHEN HE APPEALED TO THE PASSIONS AND SYMPATHIES OF THE JURORS AND INFLAMED THEM AGAINST DEFENDANT. (NOT RAISED BELOW).

POINT V

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 40 YEARS, CONSISTING OF THREE CONSECUTIVE SENTENCES WITH A 85% PAROLE BAR UNDER NERA.

II.

We are satisfied that the arguments raised in Points III and IV are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We make only these brief comments as to these points.

The prosecutor, in good faith, included the testimony he expected from Dr. DeJong in the roadmap he presented to the jury in his opening statement which referred to A.C.'s reaction to the ano-genital examination. Only afterwards did the trial court decide to exclude such evidence.

The State took the initiative in pointing out to the trial court that its opening statement referred to the expected testimony of Dr. DeJong that was later ruled inadmissible. The trial court issued an exemplary curative instruction that eliminated any possibility of error. The instruction included a hypothetical without specifically alluding to the prosecutor's comments. Defendant cannot be heard to argue now that the court erred when defendant left it up to the court to provide an instruction which defendant did not find objectionable. See State v. Kemp, 195 N.J. 136, 155 (2008).

Under Point IV, defendant argues that the prosecutor deprived defendant of a fair trial by criticizing defendant's credibility, suggesting the victims were credible, and asking the jury to remember that the victim-witnesses were children. No objections were raised by defendant at trial, so the plain error standard applies on appeal. R. 2:10-2.

The prosecutor's comments regarding the witnesses' credibility were a fair response to defense counsel's attacks on the victims' credibility in his own summation, when counsel stated that defendant "was very credible" and questioned why the victims never disclosed the assaults to a friend, teacher, or nurse.

It is clear that the prosecutor's labeling of defendant's testimony as a lie was within permissible bounds. State v. Morton, 155 N.J. 383, 457 (1998). Defendant's testimony was inconsistent regarding whether he spoke to his mother in March 2006 when he learned of the outstanding charges against him. Moreover, his testimony conflicted with the victims' testimony. Hence, the prosecutor's comments regarding defendant's testimony and motive were fair and permissible. See State v. Abdullah, 372 N.J. Super. 252, 269 (App. Div. 2004), aff'd in part, rev'd in part, 184 N.J. 497 (2005) (holding that it was not reversible error for a prosecutor to comment, in light of conflicting evidence, that defendant was not truthful).

The prosecutor did not ask the jury to protect children, to have the courage to convict, to send a message to society, or to protect society. See State v. Wakefield, 190 N.J. 397, 460-61 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Purnell, 137 N.J. 434, 476 (1994); State v. Rose, 112 N.J. 454, 520-21 (1988). Rather, the record shows that the prosecutor was merely highlighting that the victims delayed in disclosing defendant's sexual assaults because they were children, who were afraid and did not know what to do.

Although the prosecutor's reference to defendant having sex with the children in two states may be viewed as improper because the Pennsylvania criminal acts were introduced for the limited purpose of proving defendant's opportunity to commit the New Jersey sexual assaults, this brief reference did not rise to the level of plain error.

III.

In Point I, defendant challenges the admission of the Pennsylvania interviews of the children, claiming they were highly prejudicial and presented as unnecessary cumulative evidence under N.J.R.E. 403.

Because defense counsel also raised an objection before the trial court as to the admission of this evidence under N.J.R.E. 404(b), we address the admission of the interviews under that rule as well.

In a Rule 104 hearing, the defense challenged the admission of the videotaped Pennsylvania interviews of the victims. With respect to hearsay concerns, the trial court found that the out-of-court statements fell within the tender years hearsay exception, N.J.R.E. 803(c)(27).

The State sought to introduce the contents of the Pennsylvania interviews for the sole purpose of showing defendant's opportunity to have sexually abused the girls in their mother's absence, under N.J.R.E. 404(b). Defense counsel conceded that there may have been opportunities for defendant to sexually abuse the girls while their mother was out of the house or not in their immediate presence, but he denied that the acts of abuse ever occurred.

The trial court conducted its analysis under N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992). The court acknowledged that the Pennsylvania videotapes were primarily related to defendant's criminal acts in Pennsylvania, but it ruled that the interviews would be admissible to prove defendant's opportunity, since it perceived that opportunity would be a significant issue in this case. It also determined that the videotapes would prejudice defendant but that they would not outweigh the probative value of the interviews.

Under N.J.R.E. 404(b), evidence of other crimes may not be admitted "to prove the disposition of a person in order to show that such person acted in conformity therewith." However, other crimes evidence may be admitted for other purposes such as opportunity "when such matters are relevant to a material issue in dispute." Ibid.; Cofield, supra, 127 N.J. at 338-39.

We need not dwell on the trial court's analysis of the four prong test under Cofield, id. at 338, because the purpose for which defendant's criminal acts in Pennsylvania were to be admitted was to prove opportunity. That was not contested. As mentioned, prior to the pre-trial ruling on admissibility, defense counsel did not deny that there were opportunities for defendant to sexually abuse the victims. Defendant's position, as asserted at trial, was that these acts never occurred. Applying Cofield's fourth prong, which is the balancing test under N.J.R.E. 403 designed to exclude relevant evidence, "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues or misleading the jury, or (b) undue delay, waste of time or needless presentation of cumulative evidence," there is no probative value to weigh in the equation. We, therefore, agree with defendant that the Pennsylvania interviews of the children should not have been admitted into evidence.

Although we view the introduction of the Pennsylvania videotapes as error, we deem the error as harmless because we do not have a reasonable doubt that the error contributed to the jury's verdict. See State v. Macon, 57 N.J. 325, 337-38 (1971).

The Pennsylvania proofs were hardly the focus in this case. Both of the victims testified so that the jury had personal and observable bases to judge their credibility. The proofs demonstrated the vivid recollection of the victims' regarding defendant's crimes. Furthermore, each victim corroborated the other's allegations at trial, especially when some of the sexual acts were committed against each child in the presence of the other. Even defendant could not ascribe a motive for the children to concoct these allegations. Their mother and defendant's relationship had already ended in January 2005, although they remained friendly. However, there was no reason for the children to lie about what defendant sexually did to them in order to bring the relationship to an end when it had already been terminated.

Meanwhile, defendant's credibility was impeached by the production of telephone records that contradicted his earlier testimony that he had not spoken with his mother on the morning the police came to arrest him. This case, as many do, boiled down to a question of credibility for the jury to evaluate. The Pennsylvania interviews, even if they should not have been admitted, were not at all significant in assessing the credibility of the victims.

The victims' credibility was subject to attack, directly or indirectly, by defendant at trial. If the jury did not believe the victims' accusations as to the charged offense, it is inconceivable that the victims were deemed credible merely because they mentioned additional accusations against the same defendant. This is especially so since the issue concerned the "opportunity" to commit a crime because the details of the "other" crimes were not admissible as to become determinative of credibility on the charged offense. Indeed, N.J.R.E. 404(b) evidence is most damaging when a separate witness points to acts of a defendant thereby enhancing the credibility of the victim and not when, as here, the same victims simply added additional accusations against the already charged defendant.

Moreover, the prosecutor's summation made only a passing reference to Pennsylvania, that defendant had sex with the victims in two states, but, otherwise, he did not refer to the Pennsylvania proofs or the issue of opportunity. We also recognize that the trial court administered a limiting instruction that the interviews were not to be considered as proof of defendant's propensity to sexually assault the victims but, instead, as only proof of his opportunity. We have no reasonable doubt as to whether the admission of the Pennsylvania interviews diverted the jury from a reasonable and fair evaluation of defendant's guilt or innocence. See Marrero, supra, 148 N.J. at 493. We, therefore, hold harmless the admission of the Pennsylvania interviews under N.J.R.E. 403 and 404(b).

IV.

Also, under defendant's Point I, he argues that the trial court issued contradictory and inconsistent instructions in its jury charge when instructing the jury about evidence of defendant's other crimes in Pennsylvania, under N.J.R.E. 404(b), and about how it may consider A.C.'s prior inconsistent statement as substantive evidence.

After the victims testified and, again, after the Pennsylvania interviews were played for the jury, the trial court instructed the jury:

the testimony concerning the defendant inserting his private part into the private parts of [A.C.] and [S.C.] while in Pennsylvania is being . . . submitted for the limited purpose to show that the defendant had the opportunity to commit these acts upon S.C. and A.C. while the mother was sleeping, on errands, or cooking.

The court also remarked:

you may not use this evidence to decide that the defendant has a tendency to commit crimes, or that he is a bad person; that is, you may not decide that just because the defendant has committed other crimes, wrongs or acts that he must be guilty of the present crime which occurred in New Jersey.

The trial court concluded:

I have admitted the evidence only to help you decide the specific question of whether the defendant had the opportunity to commit the acts upon [S.C.] and [A.C.] while the mother was sleeping, or on an errand, or was cooking. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts.

In a charge conference, the prosecutor, defense counsel, and the trial court reviewed potential jury instructions regarding prior inconsistent statements. According to the prosecutor, A.C. said in the interview but not at trial, that defendant performed cunnilingus on her, that defendant requested she touch his penis, she resisted, and that she eventually touched his penis. However, A.C. actually testified that defendant had "put his mouth in [her] private" at the hotel and somewhere else. The trial court then told both parties it would issue a prior inconsistent statement charge for their review.

In its charge to the jury, the trial court reminded the jury to follow any limiting instructions it was given during the course of trial and that evidence admitted for a limited purpose should only be used by the jury for that purpose. The trial court later repeated its instruction regarding the limited use of the testimony about defendant's criminal sexual acts in Pennsylvania.

Subsequently, the trial court explained that a prior inconsistent statement by a witness may be considered for credibility purposes and as substantive evidence of the proof of the truth of the prior contradictory statement. The trial court recalled for the jury two particular prior inconsistent statements made by A.C.: in the Pennsylvania interview, she said that there was an act of cunnilingus and that defendant made her touch his penis and that she resisted.

At trial, defendant never objected to the trial court's instructions within the jury charge. Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2. State v. Adams, 194 N.J. 186, 207 (2008). However, this court may reverse if the instruction rises to the level of plain error, one that is "clearly capable of producing an unjust result." R. 2:10-2.

In the context of a jury charge, plain error is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Torres, 183 N.J. 554, 564 (2005) (quoting State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted)).

When evaluating a jury charge, a reviewing court must read it as a whole. Ibid. Contradictory and inconsistent jury charges are inherently inadequate because they "create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner." State v. Oglesby, 122 N.J. 522, 530 (1991) (quoting State v. Moore, 122 N.J. 420, 433 (1991)).

Here, the trial court did, in fact, give the jury contradictory instructions. The jury was instructed that the Pennsylvania interviews could only be considered as proof of opportunity and of nothing else, but it was later told that the Pennsylvania interviews could be treated as substantive evidence of defendant's commission of the wrongful acts of forcing A.C. to touch his penis and in performing cunnilingus upon her.

However, the court's contradictory instruction did not amount to plain error. A.C. testified at trial that defendant performed cunnilingus upon her. A.C.'s account was not inconsistent testimony, and her trial testimony itself constituted compelling substantive evidence of the act. The contradictory aspect of the instruction in this setting was of no real consequence. Regarding A.C.'s statement in the Pennsylvania interview that defendant forced A.C. to touch his penis, other evidence of sexual misconduct was presented to the jury that overwhelmingly supported the guilty verdict.

V.

Defendant asserts in Point II that the trial court improperly instructed the jury in its charge regarding the law on "fresh complaint." Defendant contends that the trial court should have instructed the jury that the victims' delay or silence may be considered by the jury in assessing the victim's credibility but it may not be used to support the fact of abuse.

At the conclusion of the Rule 104 hearing, the court ruled that the victims' disclosure to their mother about defendant's sexual assaults qualified as fresh complaint testimony under theory number two, which is related to N.J.R.E. 803(c)(2), for the purpose of "ensur[ing] the jury is not left with the erroneous impression that the alleged victim[s] confided in no one whom she might be expected to seek out for sympathy, solace, comfort, protection, advise [sic], or guidance."

After the trial court administered part of its charge, the State requested that the trial court administer a "Delayed Disclosure Without An Expert" instruction, largely because the defense summation played on the theme that the children never complained to friends or anyone else about the sexual acts perpetrated by defendant after they were allegedly committed. When asked for a response to this request, defense counsel answered, "[n]o objection with that, Judge."

The trial court then proceeded to advise the jury:

[t]he law recognizes that stereotypes about sexual assault complaints may lead some of you to question [A.C.] and [S.C.'s] credibility based solely on the fact that they did not complain about the alleged abuse earlier. You may not automatically conclude that their testimony is untruthful based only on their silence for delayed disclosure. Rather, you may consider the silence or delayed disclosure along with all other evidence, including [A.C.] and [S.C.'s] explanation of their silence and delayed disclosure in deciding how much weight, if any, to afford to [A.C.] and [S.C.'s] testimony.

Defendant made no objection following the instruction, so review of this issue is on a plain error basis. See R. 2:10-2; Torres, supra, 183 N.J. at 554. When defense counsel does not object to a jury charge, "it may be presumed that the instructions were adequate," and such failure to object is "indicative that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003).

Under fresh complaint theory number two, only the fact of a victim's complaint is admissible. State v. Bethune, 121 N.J. 137, 148-49 (1990). This evidence is admitted "to ensure that the jury is not left with the erroneous impression that the alleged victim confided in no one whom she might be expected to seek out for sympathy, solace, comfort, protection, advice or guidance." Biunno, Current N.J. Rules of Evidence, comment 2 to N.J.R.E. 803(c)(2) (2009).

"[D]etailed testimony concerning the content of a child's fresh complaint should not be permitted because the purpose of the rule is to prove only that the alleged victim complained, not to corroborate the specifics of the victim's allegations." State v. P.H., 178 N.J. 378, 393 (2004). Therefore, trial courts are required to instruct the jury about the limited use of fresh complaint testimony. See id. at 393-94.

In Bethune, the Court delineated two jury instructions in a child sex abuse case relating to fresh complaints. When a child makes a fresh complaint, the Court directed that trial courts "make clear 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." Bethune, supra, 121 N.J. at 148. This instruction is appropriate when a child makes a "reasonably prompt complaint." P.H., supra, 178 N.J. at 396.

On the other hand, Bethune also held that, "[i]n cases in which a child fails to complain, the court should, if requested by the State, instruct the jury not to consider it evidence weighing against the credibility of the child, because silence is one of the many ways a child may respond to sexual abuse." Bethune, supra, 121 N.J. at 148. Essentially, "[w]henever defense counsel or a witness attempts to shed doubt on the child's credibility because of his or her silence after the assault . . . the trial court should issue a curative instruction and instruct the jury not to draw from the silence an adverse inference." Ibid. In P.H., the Court clarified that this second instruction should also be given when "the child's disclosure is delayed sufficiently that there is no fresh complaint," or in other words where there is a "belated disclosure of abuse." P.H., supra, 178 N.J. at 393.

Here, the trial court appropriately instructed the jury with the latter of the two instructions discussed by the Court in Bethune. Indeed, defense counsel attempted to shed doubt on the victims' credibility based on their prolonged silence and delay in reporting the sexual assaults to their mother. The children did not disclose the sexual assaults until October 2005; more than a year after both victims claimed the assaults started and at least a couple of months after the final sexual assault. This would fall under the category of a "belated disclosure of abuse." See ibid.; cf. Bethune, 121 N.J. at 141 (requiring the first fresh complaint instruction for a disclosure that occurred one to two weeks after the most recent sexual assault). The trial court applied controlling New Jersey precedent and the applicable model jury charge. There was no error in the trial court's fresh complaint instruction. See State v. Rodriguez, 365 N.J. Super. 38, 53 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

VI.

Defendant asserts in Point V that the sentencing court improperly double-counted in applying aggravating factor number one, the nature of the crime, because the first-degree sexual assault charges were elevated to aggravated charges because they involved sexual penetration upon a class of victims under the age of thirteen. Defendant also claims that the sentencing court erred under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in imposing three consecutive sentences.

The "facts that establish elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000). This is called double-counting.

Under N.J.S.A. 2C:14-2(b), one is guilty of sexual assault if the actor "commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." However, the crime is elevated to aggravated first-degree sexual assault if the actor engages in sexual penetration with a victim who is less than thirteen years old. N.J.S.A. 2C:14-2(a)(1).

Aggravating factor number one contemplates "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1).

Here, the sentencing court focused on the nature of the relationship between defendant and the victims and the role that defendant played in the victims' lives. Defendant was the victims' mother's boyfriend when the sexual assaults began. Whether the children viewed him as a member of the family is undeniable, as demonstrated by the girls' referring to him as "Uncle [R.]." Defendant stayed overnight with the victims' family for extended periods of time and was frequently entrusted with watching the children while their mother ran errands. To be sure, he enjoyed a position of trust within the family. Both defendant's place in the household and his breach of that trust were the bases underlying the finding of aggravating factor number one, not any element of the crimes themselves. The court's rationale for finding aggravating factor number one was "grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984). This relationship did not elevate the crimes to first-degree. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988).

The sentencing court did not make a finding of aggravating factor number two, but it did refer to the harm that will be suffered by the victims in the future. However, these comments largely were an outgrowth of the court's discussion of the role defendant played in the victims' lives under aggravating factor number one.

The sentencing court did not engage in impermissible double-counting, nor did it err in its weighing of aggravating and mitigating factors. The court provided a full explanation in reaching its sentencing decision. State v. Bieniek, 200 N.J. 601, 609 (2010).

Defendant argues that the overall sentence imposed by the court is not fair and is unduly punitive since the length of defendant's consecutive sentences is equal to the maximum permissible sentence for the two highest degree crimes. Defendant does recognize that consecutive sentences may be imposed under Yarbough where two victims are involved. Defendant, however, focuses on a third consecutive sentence which he contends was not warranted because the crimes were of a continuing nature even if committed at difference locations.

The Yarbough criteria were satisfied since the crimes

committed by defendant were independent of each other; involved different victims, A.C. and S.C.; and at different times or separate places, Princeton, Somerset, and Rahway over the course of thirteen months. The court sentenced defendant to consecutive sentences for the sexual crimes against A.C. at two of the three different locations where those crimes were committed at different times and independent of each other. The other consecutive sentence involved the sexual crimes against the younger sister. The admonition of "no free crimes" deserves more than superficial attention under the circumstances of this case. To be sure, the "no free crimes" guideline set forth in Yarbough tilts in the direction of consecutive sentences because the Code focuses on the crime, not the criminal. State v. Carey, 168 N.J. 413, 423 (2001).

Although the aggregate sentence here is the equivalent of the maximum permissible sentence for the two highest degree crimes, forty years, there is no outer limit for consecutive sentences, N.J.S.A 2C:44-5(a)(2). Indeed, greater discretion has been granted to courts in determining the overall length of a sentence. State v. Abdullah, 184 N.J. 497, 513 (2005). The aggregate sentence is fair based on the crimes committed. Our judicial conscience is not shocked by the sentence imposed. Roth, supra, 95 N.J. at 364-65.

At the conclusion of the sentencing hearing, the sentencing court orally imposed the following fines: "$100 on each count, Violent Crime Compensation Board fine, $75 Safe Neighborhood fine on each count, $30 Law Enforcement Officers Fund fine on each count. The [c]ourt also imposes a $1,000 fine on [c]ount 1, court fine."

The judgment of conviction assesses all of the aforementioned fines except for the $1,000 court fine on count one. According to defendant's judgment of conviction, defendant was fined $100 under N.J.S.A. 2C:43-3.7 for count one and $2,000 under N.J.S.A. 2C:46-1 and -2 for count one.

"A trial court's oral opinion normally controls over an inconsistent judgment of conviction." State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005); State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).

We remand to correct the judgment of conviction to be consistent with the sentencing court's oral decision at sentencing on the fines imposed.

 
Except to remand for correction of the judgment of conviction as to the fines imposed, the judgment of conviction and sentence is affirmed.

The trial court misspoke twice, saying, "the Court finds that although there is prejudice to the defendant, that the prejudice is not so far outweighed by the probative value of the events that happened in Pennsylvania, which are very similar to those that happened in New Jersey," and "the Court thinks that it is prejudicial, but the Court does not find the prejudice to be so outweighed by the probative value so that there can be an explanation of the opportunity that it presented itself for the defendant to have committed these acts." Regardless, the trial court was clear in its decision to admit the evidence under the fourth prong of N.J.R.E. 404(b) and N.J.R.E. 403.

(continued)

(continued)

2

A-3367-07T4

RECORD IMPOUNDED

March 22, 2010