STATE OF NEW JERSEY v. R.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6533-06T46533-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 19, 2010 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0742.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant R.L. was convicted on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one and two); second-degree sexual assault, N.J.S.A. 2C:14-2b (counts three, five and six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count four). The judge imposed the following sentence: on count two, a fifteen-year term of imprisonment, subject to a seven and one-half year period of parole ineligibility consecutive to counts one, three and six; on count one, a fifteen-year term, consecutive to counts two, three and six; on count three, a five-year term of imprisonment, with a two and one-half year parole ineligibility period, consecutive to counts one, two and six; on counts three and four, a five-year term of imprisonment, concurrent to each other, and to counts one, two, three and six; and on count six, a five-year term of imprisonment, with a two and one-half year parole ineligibility period, consecutive to counts one, two and three. The aggregate sentence was thus forty years imprisonment, subject to a twelve and one-half year period of parole ineligibility.

On appeal, defendant presents the following claims:

I. THE ADMISSION OF THE HEARSAY STATEMENTS OF A NON-TESTIFYING DOCTOR, WHO AFTER EXAMINING THE ALLEGED VICTIM ASKED WHETHER "THERE WAS ANY POSSIBLE WAY THAT . . . [SHE] COULD HAVE BEEN [SEXUALLY ABUSED]," DENIED DEFENDANT A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 10

II. THE ADMISSION OF THE ALLEGED CHILD VICTIM'S HEARSAY STATEMENTS WITHOUT NOTICE AND WITHOUT A PROPER 104(A) HEARING TO DETERMINE WHETHER THE STATEMENTS MET THE ADMISSIBILITY REQUIREMENTS OF N.J.R.E. 803(C)(27) REQUIRES A REMAND. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 10

III. THE FOUR CONSECUTIVE SENTENCES HERE EXCEEDED THE THREE CONSECUTIVE SENTENCES REQUESTED BY THE PROSECUTOR, VIOLATED THE YARBOUGH GUIDELINES, AND WERE PATENTLY EXCESSIVE. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 1, 9, 10.

We reject these contentions and affirm defendant's conviction and sentence.

I.

The State's proofs demonstrated that from the time L.L. was four years old until she was twelve, defendant, who is her father, sexually abused her. L.L. testified that her father worked at a nearby factory during the day, but her mother, J.L., worked the night shift as a bartender. Consequently, defendant was responsible for the care of L.L. and J.G., her half-brother, while their mother was at work.

When L.L. was four years old, defendant began touching her "personal areas," rubbing her vagina. Defendant engaged in such conduct while J.G. was either in his bedroom in the attic or out with his friends. On the occasions when J.G. was home, defendant would move a piece of furniture in front of L.L.'s bedroom door so that no one could enter.

When defendant first engaged in this conduct, L.L. said "no," but subsequently she simply "look[ed] at the ceiling" and "just hope[d] that he would go away." L.L. explained that her father also frequently placed his hands on her breasts and moved them "in a circular motion."

By the time L.L. was seven years old, and she and her family had moved to her grandparents' home, defendant "took it up a notch." L.L. testified that her father starting by "doing his normal routine," but then started to also pull his pants to his knees, remove his underwear and start rubbing her vagina. He then placed his penis into her "private part" and "was moving it in and out." According to L.L., defendant typically said "that it would be okay, baby, it will be over soon."

After one of the occasions when defendant penetrated her with his penis, L.L. observed that she was bleeding slightly from her vagina, but ignored it and returned to bed. The next morning, she was "bleeding immensely" and crying when her mother, home from work, came into her room. L.L. told her mother she was bleeding. L.L. did not disclose to her mother anything about defendant's conduct. Because all of the women in her mother's family had begun menstruating at an early age, L.L.'s mother assumed that the bleeding was the result of menstruation. At this time, L.L. was only seven years of age. When L.L.'s mother told defendant that L.L. had become a "little lady," the two laughed; however, after the bleeding episode, defendant stopped coming to L.L.'s bedroom for approximately three years.

When L.L. was ten years old, defendant's visits to her bedroom resumed. After tucking her in for the night, defendant would return to L.L.'s room where he would rub the outside of her vagina and insert his fingers inside, moving them in and out. On another occasion, also when she was ten years old, L.L. recalled that defendant masturbated in front of her while penetrating her vagina with the fingers of his other hand. After ejaculating, defendant left the room.

L.L. proceeded to testify that more often than not during these episodes of abuse, defendant would merely insert his fingers into her vagina without touching himself. She testified this occurred a few times per week. During this time period, her mother was still out of the home at night working as a bartender.

L.L. also explained that on one or two other occasions, defendant masturbated in front of her without touching her. She recalled that on one such occasion, he removed her clothes and left her lying on her bed naked above the covers.

As she had done when she was younger, L.L. generally said nothing, "just pray[ing] that he would go away and he wouldn't come back." On other occasions, L.L. tried to distract herself from what defendant was doing by thinking of "anything that made me happy[,] like my granddaddy."

In her testimony describing these events, L.L. related an incident where her mother and defendant took her to a local emergency room for treatment of a vaginal cyst. The jury was told only that L.L. had a cyst, without specifying the location of the cyst, because the judge had granted defendant's in limine motion. L.L. heard the physician ask her mother whether there was any possibility L.L. had been sexually abused. Her father was the one who responded, and stated "nobody would ever do that to my kids, I would kill them." L.L. herself remained silent about what her father had done.

On another occasion when L.L. was ten years old, she was admitted to a hospital, this time for treatment of a urinary tract infection. Defendant remained with her all night, sleeping on a reclining chair next to her hospital bed, thereby preventing her from confiding in hospital staff. Defendant's sexual abuse continued for the next three years.

One night, while L.L. and defendant were sitting on the living room couch when L.L. was thirteen, he tried to "grab [her] private part." She told him "no" and a "huge argument" ensued. Unbeknownst to the two of them, J.G., who was by then eighteen years old, had been upstairs watching a movie with a friend. J.G. heard L.L. yell to defendant "get away from me." J.G. immediately came downstairs and told defendant that "if he ever laid a hand" on L.L., J.G. "would kill him." Defendant and J.G. exchanged a few more words, and the fight ended. J.G. took L.L. upstairs and kept her with him until their mother came home. Notably, L.L. did not tell J.G. that defendant was trying to sexually abuse her at the time J.G. came downstairs, nor did she tell him what defendant had been doing to her for the past nine years.

L.L. testified that she was emboldened to resist her father's advances that night because she was older and therefore stronger, and had begun staying at friends' homes overnight and had realized that none of her friends' fathers were treating their daughters in the same fashion defendant had been treating her. Nonetheless, L.L. explained that she was afraid to disclose to her mother or J.G. what defendant had been doing because he had threatened to kill her if she told anyone about his conduct. He also told L.L. that he would kill anyone who was important to her if she made any disclosures.

In addition, L.L. described defendant as physically abusive, referring to one occasion when he had thrown a television remote control device at her, and another instance when he had thrown a lamp against her bedroom wall. She testified that whenever she expressed even the slightest resistance to one of defendant's instructions, such as by objecting to being ordered to clean her room, defendant would become enraged.

In December 2003, L.L.'s mother separated from defendant, and she and L.L. moved to North Carolina to live with a childhood friend of L.L.'s mother, whom she married sixteen months later. After moving to North Carolina with her mother, L.L. returned to New Jersey to visit defendant during the summer of 2004, remaining for an entire month. She did not object to the visit or reveal to her mother that defendant had been sexually abusing her ever since she was four years old. Although L.L. returned to New Jersey in the summer of 2005 to again visit with her father, ultimately she chose to spend much of the time staying with friends, and eventually she asked her stepfather to come and get her one week early so that she could return to North Carolina, which he did.

In August 2005, when L.L. was sixteen years old, she began to experience severe stomach pain, was vomiting and losing weight. She was admitted to a hospital in North Carolina. It was during that hospitalization, while L.L. and her mother were discussing L.L.'s childhood, that L.L. began crying and told her mother, "he did it. He did it." Her mother left the room to ask the nurse who had been caring for L.L. to come in while L.L. described what defendant had done, "things a father should not do to their daughter." She provided full details to her mother, a nurse named Tonya, and local police, who notified the Camden County Prosecutor's Office.

L.L. also testified that while the abuse was occurring, she made diary entries in a notebook, in which she described her sexual abuse at the hands of her father. She kept the notebook hidden in her room, but noticed at some point that it was missing. When defendant moved out of L.L.'s grandparents' home, and her grandparents were moving some furniture, L.L.'s notebook was found, but the six pages in which she had written a description of the sexual abuse had been torn out of the notebook. Because the notebook was thus of no further use to her, L.L. discarded it. L.L.'s mother, however, was present on the day the notebook fell out from under the cushion of the chair. She thus corroborated L.L.'s testimony that such a notebook existed.

During her testimony, L.L. also read to the jury, over defendant's objection, a letter she had written to her mother and a poem sent to her father in which she described her feelings about having been sexually abused, her reasons for not disclosing the abuse earlier, the emotional pain she had endured over those years and her relief that she no longer harbored such a secret. In overruling defendant's objection to these documents, Judge Holden observed that delayed disclosure by L.L. was one of the principal issues the jury would be required to address, and L.L.'s letter and poem were "certainly material." The judge noted that although the letter and poem were not written at the time the alleged sexual assaults occurred, they were written "at the time when she disclosed them and [were relevant to] her thought process leading toward disclosure."

L.L. acknowledged on cross-examination that in the time period between 2003 and 2005 she had gone to the hospital in North Carolina on a number of occasions for a series of gastrointestinal problems, but she had never disclosed to any of the doctors or nurses what her father had been doing to her. She also admitted that she had had the same opportunities during visits to her pediatrician, but had not told him either. She explained that her fear of her father, and his aggressive and violent behavior, combined with the embarrassing nature of what had occurred, together caused her to remain silent.

The State also presented the testimony of L.L.'s mother, whose testimony was consistent with L.L.'s, as well as an investigator from the Prosecutor's Office, J.G., and an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Both L.L.'s mother and her brother J.G. corroborated L.L.'s description of defendant as a bully who sometimes physically assaulted L.L., her mother, and J.G.

In his charge to the jury, the judge did not provide an instruction directing the jurors to disregard the physician's question to L.L.'s mother about whether L.L. might have been sexually abused. Neither side had asked for such an instruction. When the jury began deliberating, its first question was "at what age was L.L. treated for a cyst? What part of her body was the cyst located?" After discussing the jury's question with counsel, both of whom agreed with the court's proposed response, the judge informed the jury that L.L.'s testimony established that she was nearly eleven years old when the cyst was diagnosed. The judge also instructed the jury that "[t]he part of the body on which the cyst was located is not part of the evidence or testimony, and so it is not appropriate for that to be supplemented."

II.

In Point I, defendant argues that the doctor's inquiry -- about whether L.L. could have been sexually abused -- was hearsay testimony that was not admissible under any of the hearsay exceptions established in the Rules of Evidence. Defendant argues that the admission of this testimony, even though no objection was interposed, was so prejudicial as to require a new trial because the evidence in question was "clearly capable of producing an unjust result." See R. 2:10-2. Defendant argues that the hearsay statement of the doctor "gave the jury the inescapable inference that a non-testifying medical doctor had examined [L.L.] and found physical evidence of sexual abuse."

Relying on State v. Branch, 182 N.J. 338, 348 (2005) and State v. Bankston, 63 N.J. 263, 271 (1973), defendant argues that when one witness repeats the out-of-court statement of another under circumstances where the out-of-court declarant's remark creates the inescapable inference that such person possesses information implicating the defendant in a crime, the admission of such hearsay testimony violates a defendant's rights under the State and Federal Confrontation Clauses.

The State argues that the physician's remark was not hearsay because it was not offered for its truth. See N.J.R.E. 801(c) (defining hearsay as a statement made by an out-of-court declarant offered "to prove the truth of the matter asserted"). The State maintains that because the doctor's remark was phrased as a question, rather than as a declaratory statement, it had no informational value and was therefore not offered for truth. We view such argument as unpersuasive.

It is reasonable to assume that no physician would ask such a question unless, at a minimum, he believed that there was at least a possibility that the patient had been sexually abused. We disagree, however, with defendant's contention that the doctor's remark could only have been interpreted by the jury as evidence of the doctor's conclusion that L.L. must have been abused. We consider such an interpretation to be an overreading of the doctor's question.

We believe the more reasonable interpretation of that remark is that the doctor considered sexual abuse as one of a number of possible explanations for the cyst. Thus, to that limited extent, L.L.'s testimony about the doctor's question served to bring before the jury the doctor's opinion that sexual abuse was a possibility. So viewed, we agree with defendant's contention that the testimony satisfies the definition of hearsay as contained in N.J.R.E. 801(c).

That, however, is not the end of the analysis. Because defendant did not object to the testimony in question, we will not reverse on this basis unless the error was "clearly capable of producing an unjust result." R. 2:10-2. In particular, "'[b]ecause the issue is now to be resolved under the 'plain error' rule, we must consider whether there is reasonable doubt that the jury would have ruled other than as it did.'" Branch, supra, 182 N.J. at 353 (quoting State v. Irving, 114 N.J. 427, 447 (1989)).

We turn to an analysis of the strength of the State's case. Ibid. This was not a case that rested solely on L.L.'s accusations, in which case the doctor's remark would be potentially more harmful. Instead, the jury heard the undisputed evidence that L.L. experienced vaginal bleeding when she was only seven years old. Although L.L.'s mother concluded that the bleeding was attributable to L.L. beginning to menstruate, the jury was certainly entitled to apply its own everyday experience and recognize that very rarely do girls begin their menstrual cycle at the of seven. Thus, this evidence was consistent with L.L.'s claim of vaginal penetration by her father.

Second, although L.L.'s notebook was not produced, its existence was corroborated by L.L.'s mother. In addition, the jury was entitled to conclude that because the notebook was found hidden in defendant's chair, it must have been defendant who had ripped the six pages out of the notebook, and it was defendant who had hidden the notebook because its contents were so damaging to him. Thus, the jury was not required to depend solely upon L.L.'s uncorroborated testimony.

Moreover, the defense exploited L.L.'s failure to respond to the physician's inquiry as part of its argument that L.L. was not worthy of belief because she never availed herself of the numerous opportunities to disclose what had allegedly occurred. This theme was pursued forcefully in relation to L.L.'s failure to disclose defendant's conduct: during her many visits to her pediatrician; during her hospital stay when her gallbladder was removed in 2004; in the one and one-half year period after she and her mother moved to North Carolina; when her brother brought her up to his bedroom after her loud argument with her father when she was thirteen; or by not refusing to visit with her father in New Jersey during the summers of 2004 and 2005.

We can only conclude that trial counsel, who was an experienced defense attorney, did not view the testimony about the doctor's query as harmful. State v. Wilson, 57 N.J. 39, 51 (1970) (observing that "a failure to object . . . indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial"). Thus, in light of the degree of corroboration presented to the jury, and defendant's aggressive cross-examination of L.L. concerning her silence, which included her silence when the physician asked this question, we cannot conclude that the admission of the hearsay evidence at issue caused the jury to reach a result it would not otherwise have reached. See State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. We thus reject the claim defendant advances in Point I.

III.

In Point II, defendant asserts that the admission of L.L.'s letter to her mother, and poem to defendant, after she disclosed the abuse were improperly admitted and require a new trial. In particular, he maintains that the judge was required to hold a hearing outside the presence of the jury to determine whether the statements met the admissibility requirements of N.J.R.E. 803(c)(27).

This argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, the evidence Rule defendant relies upon has no applicability where, as here, the witness in question is over the age of twelve. See N.J.R.E. 803(c)(27). Here, the letter L.L. wrote to her mother and the poem she wrote to defendant, both of which she read aloud in her direct testimony, were authored by L.L. when she was sixteen years old. Moreover, neither document contains any details of defendant's sexual assault on her. Instead, the writings were offered as evidence of L.L.'s state of mind and emotions when she disclosed to her mother the years of abuse she sustained at the hands of her father. The poem to her father does not provide any details of the abuse, but instead berates him in broad terms and expresses her hope that he will one day experience some guilt. Thus, the documents in question pertain to L.L.'s state of mind at the time she made the disclosure, and were therefore admissible under N.J.R.E. 803(c)(3) (establishing a hearsay exception for a declarant's then-existing mental or emotional condition).

Moreover the documents L.L. read to the jury were distinctly relevant to one of the critical issues in the trial, L.L.'s delayed disclosure. The evidence was highly probative and its probative value was not outweighed by the risk of undue prejudice. See N.J.R.E. 403. We thus reject the claim defendant advances in Point II.

IV.

In Point III, defendant asserts that the sentence imposed was excessive. In particular, he points to the four consecutive sentences, and observes that the prosecutor asked only that three consecutive sentences be imposed. Aside from urging that the court erred because it did not follow the sentencing suggestion of the prosecutor, defendant additionally argues that the court should not have imposed any consecutive terms because there was only one victim, no independent criminal objectives and the crimes occurred over a single period of time. Last, defendant contends that the aggregate sentence imposed, a forty-year term of imprisonment, subject to a twelve and one-half year period of parole ineligibility, was patently excessive given his lack of prior criminal history.

Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

As to defendant's claim that the sentence was excessive because it exceeded the prosecutor's recommendation, we disagree for three reasons. First, the prosecutor's sentencing requests and recommendations are just that, requests and recommendations. They are certainly not binding upon a court, any more than a defense attorney's requests are. Second, we do not review a sentencing decision for the degree to which it complies with, or deviates from, a prosecutor's recommendation. We review a sentencing decision only to determine whether the aggravating and mitigating factors were properly found and whether the sentence imposed "shocks the judicial conscience." Ibid. Third, the prosecutor actually requested an aggregate custodial sentence of forty-four years with a thirteen-year period of parole ineligibility, and thus the sentence the judge imposed did not exceed the prosecutor's request, but was actually considerably shorter than what the prosecutor requested. We thus reject defendant's claim that the sentence was excessive because it exceeded the prosecutor's request.

We likewise reject defendant's argument that the court should not have imposed any consecutive terms because there was only one victim, no independent criminal objectives and the crimes occurred over a single period of time. The judge squarely rejected such an argument, reasoning:

[t]hese crimes were repetitive but they were independent of one another. You returned night after night after night through many of the developmental years of this young woman's life. They were committed at different times. They occurred on numerous occasions.

Moreover, the conduct of which defendant was convicted in each count of the indictment was not the same. Although, broadly speaking, all counts addressed defendant's sexual victimization of his daughter, the specific acts were far from identical. In particular, count one involved vaginal intercourse with L.L. between April 27, 1996 and April 26, 1997, when she was just seven years old. Count two involved digital penetration of L.L.'s vagina between April 27, 1999 and April 26, 2002, when L.L. was between the ages of ten and twelve. Count three charged defendant with rubbing L.L.'s vagina on various dates between April 1993 and April 26, 2002, when L.L. was between four and twelve years old. Count four charged him with endangering the welfare of a child based upon impairing L.L.'s morals between April 1993 and April 2002, when L.L. was between the ages of four and twelve. Count five charged defendant with touching L.L.'s breasts in 1995 and 1996 when L.L. was six years old. Last, count six charged defendant with masturbating on various dates between April 1999 and April 2000 when L.L. was ten years old.

Thus, as is unmistakably clear, the conduct in question occurred at different points of time and involved different and distinct indignities. The same considerations led us in State v. Fraction, 206 N.J. Super. 532, 538-40 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986), to reject the same claims that defendant advances here. While we recognize that Fraction presented the question of whether the defendant's convictions for different types of vaginal penetration should be merged, ibid., not whether different types of sexual conduct should properly be the subject of consecutive sentences, its rationale is certainly applicable here. As we observed in Fraction:

[W]e would be myopic were we to ignore the fact that the victim suffered separate and distinct indignities. Each assault can reasonably be considered a separate event deliberately undertaken and warranting separate prosecution and conviction. Defendant deliberately subjected the victim to repeated and different acts of sexual abuse. In short, we discern no reason to accord him the benefit of a "free" crime. State v. Yarbough, 100 N.J. 627, (1985).

[Id. at 540.]

We are satisfied, as was the trial judge, that defendant sexually abused L.L. in every manner conceivable, starting with rubbing the outside of her vagina and rubbing her breasts, progressing to digital penetration of her vagina while masturbating himself, then progressing to vaginal intercourse. These were different types of indignities, each committed at a different period of time. The judge did not misapply the broad sentencing discretion vested in him by State v. Roth when he imposed consecutive sentences for each different type of sexual indignity.

We also note that the record belies defendant's claim that defendant engaged in this conduct over an uninterrupted period of time. The record demonstrates that there was a three-year hiatus after L.L. experienced vaginal bleeding when she was seven years old. Thus, this was not an uninterrupted period of sexual abuse, but instead one that was halted and then resumed, thus requiring defendant to make a renewed decision to engage in criminal conduct with his own daughter.

In short, we have been presented with no meritorious basis upon which to conclude that the sentence imposed by Judge Holden shocks the judicial conscience. We thus reject the claim defendant advances in Point III.

 
Defendant's conviction and sentence are affirmed. Remanded for the entry of an amended JOC correcting the sentence imposed on count six, as described in n.1 supra.

We note that count six of the Judgment of Conviction (JOC) does not include the two and one-half year parole ineligibility period the judged imposed orally at the time of sentencing. When there is a discrepancy between the oral imposition of sentence and the JOC, the former is controlling, so long as the oral remarks are "clearly stated." State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). Here, the sentence imposed on count six was "clearly stated," after which the judge remarked that the "total sentence" was "40 years, 12 and a half years without parole eligibility." Thus, as is evident, the oral version of count six must be correct, for without it, the parole ineligibility period would only be ten years.

(continued)

(continued)

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A-6533-06T4

RECORD IMPOUNDED

February 3, 2010