STATE OF NEW JERSEY v. LEONARD G. DENNIS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0798-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD G. DENNIS,

Defendant-Appellant.

_______________________________________

May 12, 2011

 

Submitted April 12, 2011 Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-3983.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald F. Cox, Jr., Designated Counsel, 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

Defendant Leonard G. Dennis was tried before a jury, which found him guilty on two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b), and one count of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). Defendant appeals from the convictions and the sentences imposed. We affirm.

I.

At the trial of this matter, the State presented evidence that on May 4, 2007, C.R., who was six years old at the time, was at a community center in Camden, which was the site of a karate school. Defendant, a member of the center, had previously attained black belt status in karate. Defendant worked at the center performing janitorial services on a voluntary basis.

At 5:45 p.m., C.R. was dropped off at the center. Defendant was the only other person there. C.R. testified that defendant asked her to help him, and he gave her a dollar to go next door, where she purchased some candy. When she returned to the center, defendant called her into the weight room in the rear of the building. According to C.R., defendant put his hand under her clothes, touched her vagina and also kissed her on the mouth.

C.R. said that defendant then told her to go upstairs to the girls' bathroom, where he joined her. He told her to sit on top of him, fully clothed. C.R. touched defendant's penis through the opening in his pants. Defendant heard some girls coming and told C.R. that he would go downstairs by himself, after which she should come down. Defendant went down and, thereafter, C.R. followed.

C.R. testified that she felt "nervous" and "nasty" during this encounter with defendant. C.R. further testified that, when she went downstairs, she saw the two girls who had entered the center, A.K. and S.D. They told her to go upstairs with them, where they asked her what had happened and she told them. A.K. and S.D. reported what C.R. told them to a volunteer at the center. C.R.'s mother and grandmother were informed, and they contacted the police.

A.K. testified at the trial. She was thirteen years old at the time. A.K. stated that on May 4, 2007, she arrived at the center at around 6:45 p.m. S.D. and a boy arrived at the same time. A.K. went into a back room to change her clothes. When A.K. returned, she observed C.R. sitting between defendant's legs on a weight room chair. A.K. told C.R. to come upstairs with her.

A.K. asked C.R. if she had a "relationship" with defendant. C.R. replied that defendant was her uncle. C.R. then said that defendant was her grandfather. A.K. testified that C.R. looked "worried" and she told C.R. that she was not telling the truth. C.R. then asked A.K. to accompany her to the nearby store. A.K. agreed and they went to the store.

When they returned to the center, A.K. observed defendant leave the building. C.R. went upstairs and A.K. followed her. S.D. was speaking with C.R., and C.R. told them what had happened. A.K. asked C.R. why she never told anyone about this, and C.R. replied that defendant told her to always listen to "a black belt."

S.D. also testified at the trial. She was then twelve years old. S.D. stated that on May 4, 2007, she arrived at the center and saw C.R. in the weight room sitting between defendant's legs. She spoke with C.R. in the girls' locker room. According to S.D., C.R. was upset and crying. C.R. told her of the encounter with defendant.

After the State rested its case, the court dismissed the charge of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1). Defendant did not testify and called no witnesses on his behalf. After the jury was charged, it found defendant guilty on two counts of sexual assault and one count of endangering the welfare of a child. The court sentenced defendant on April 1, 2009, and entered a judgment of conviction on that date. This appeal followed.

Defendant raises the following issues for our consideration:

 

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND THUS DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING THE PROSECUTOR TO ELICIT AND PRESENT TO THE JURY WITHOUT PROPER INSTRUCTION IRRELEVANT, INADMISSIBLE AND UNDULY PREJUDICIAL "FRESH-COMPLAINT" TESTIMONY (RAISED BELOW).

 

A. Background

 

B. The so-called Fresh-Complaint testimony was irrelevant to the allegations contained in the Indictment

 

C. The so-called Fresh-Complaint evidence constituted inadmissible testimony of prior bad acts

 

D. The probative value of the so-called Fresh-Complaint evidence was substantially outweighed by the risk of undue prejudice

 

E. The jury was not properly instructed with regard to the so-called "Fresh-Complaint" testimony

 

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING WITHOUT PROPER INSTRUCTION THE INTRODUCTION OF INADMISSIBLE HEARSAY IN THE GUISE OF "FRESH-COMPLAINT" TESTIMONY (PARTIALLY RAISED BELOW).

 

POINT III

AS DEFENSE COUNSEL FAILED TO REQUEST A HEARING TO DETERMINE THE ADMISSIBILITY AND CONTENT OF THE TESTIMONY OF THE FRESH-COMPLAINT WITNESSES THE DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).

POINT IV

THE FACTORS UTILIZED AT SENTENCING WERE INCORRECTLY DETERMINED AND THE SENTENCE IMPOSED WAS CLEARLY ERRONEOUS.

 

A. Aggravating and Mitigating Factors

 

B. Erroneous balancing from inclusion of unsupported factors

 

II.

We turn first to defendant's contention that the trial court erred by allowing the prosecutor to elicit and present certain "fresh-complaint" testimony from A.K. Defendant focuses upon the following testimony, which A.K. gave in response to the questions of the assistant prosecutor:

Q. Okay. And what what exactly did [C.R.] tell you directly, that you can remember?

 

A. She told me that she told me that that he would force her to go upstairs. And he would, like, touch her in inappropriate places.

 

Q. Okay. When you say he would force her to go upstairs, do you know where upstairs she was talking about?

 

A. The the little room between the bathroom and the training room.

 

Q. Uh-huh. And you said that he would touch her in inappropriate places, that that's what she told you?

 

A. Yes.

 

Q. Do you know what those inappropriate places were? Is that a yes?

 

A. Yes.

 

Q. What were those inappropriate places?

 

A. In her genital area. And he would touch her, like, on her face and stuff. And she told me that he . . . would take her in the bathroom and he would pull her pants down and he would touch her in her lower area.

 

The fresh-complaint rule allows the introduction of a victim's statement to someone whom the victim would ordinarily turn to for support, provided the statement was made within a reasonable time after the alleged incident and was spontaneous and voluntary. State v. Hill, 121 N.J. 150, 163 (1990). The fresh-complaint evidence serves a limited purpose in a case involving an alleged sexual assault. Ibid. "It allows the State to negate the inference that the victim was not sexually assaulted because of her silence." Ibid. (citing 4 J. Wigmore, Evidence 1135 at 297-301 (Chadbourn rev. ed. 1970)). Only the fact of the complaint, not the details, is admissible. Ibid. (citing Wigmore, supra, 1136 at 306-11). Furthermore, the State may not introduce the fresh-complaint evidence unless the victim is a witness at trial. Ibid. (citing Wigmore, supra, 1136 at 306-11).

Defendant argues that the admission of A.K.'s testimony was erroneous because she purportedly testified that defendant had engaged in inappropriate sexual actions with C.R. at times other than those for which he had been charged. Defendant contends that the testimony was irrelevant to the allegations in the indictment. Defendant also argues that A.K.'s testimony constituted inadmissible testimony of prior bad acts. We disagree.

We note initially that, after A.K. testified as to what C.R. told her, defendant's counsel objected and asked to be heard by the court outside of the presence of the jury. After the jury was excused, defendant's attorney told the court he was concerned that A.K.'s testimony might be interpreted as suggesting that defendant had engaged in inappropriate sexual conduct on occasions other than those charged in the indictment.

Defense counsel asserted that, in her pretrial statement, A.K. claimed defendant had also touched her inappropriately. He expressed a concern that "we're going to be opening the door to some completely unacceptable hearsay testimony" that he was not prepared to address. He also expressed a concern that, while C.R. had not testified that "defendant used his tongue or performed cunnilingus[,]" A.K. was "verging towards testifying that in fact happened."

Counsel additionally asserted that the assistant prosecutor "has a limited ability" to control a witness "especially in a situation like this where she's already tearing up." Counsel stated that he was concerned that A.K. would "continue talking about what [defendant] would do, suggesting that there were other occasions."

In response, the assistant prosecutor stated that, while S.D. alleged that defendant inappropriately touched her on another occasion, A.K. never made such a claim. The assistant prosecutor also stated that A.K. and S.D. were called to testify as to what they observed on May 4, 2007, and what C.R. told them about the events of that day, not what may have happened on other occasions.

The trial court commented that it would instruct the jury it could only consider A.K.'s testimony "with respect to the events of" May 4, 2007. However, defendant's attorney stated that such an instruction was not warranted because "at this point, [A.K.] [had not] really said anything about other events." He added that he was only "concerned about an interpretation" of her statements based on her use of a "verbal tense" that indicated defendant "would do things."

In our view, the record does not support defendant's contention that A.K.'s fresh-complaint evidence was erroneously admitted because it included a complaint about incidents for which defendant had not been charged. As we have indicated, A.K. testified that C.R. told her defendant "would force her to go upstairs" and "would, like, touch her in inappropriate places." A.K.'s phraseology was somewhat confusing but she did not state C.R. had reported that defendant had engaged in inappropriate conduct on occasions other than the conduct alleged to have occurred on May 4, 2007.

Indeed, when she was questioned by the court, A.K. stated that while C.R. told her about "things that happened" on days other than May 4, 2007, the testimony she had already given had been about what happened on May 4, 2007. As we have indicated, that is exactly how defense counsel interpreted A.K.'s testimony.

Defendant further argues that the admission of the fresh-complaint evidence was erroneous because its content allegedly was derived from "coercive questioning." Again, we disagree.

"[S]tatements that are procured by pointed, inquisitive, coercive interrogation lack the degree of voluntariness necessary to qualify under the fresh-complaint rule." Hill, supra, 121 N.J. at 167. However, the line "between non-coercive questioning and coercive questioning depends on the circumstances of the interrogation." Ibid. The trial court must determine "'when that line is crossed.'" Id. at 167-68 (quoting State v. Bethune, 121 N.J. 137, 145 (1990)). The factors that the court should consider in making that determination include the age of the victim, the circumstances of the interrogation, the victim's relationship to the interrogator, and the type of questions asked. Id. at 168.

In our view, the record establishes that A.K.'s and S.D.'s questioning of C.R. was not coercive. The record shows that A.K. and S.D. questioned C.R. after they entered the center and observed C.R. sitting between defendant's legs. A.K. and S.D. were concerned about what they had seen, and they questioned C.R. as to what had occurred. A.K. and S.D. were C.R.'s acquaintances. C.R. was only six years old at the time of the alleged offenses. A.V. and S.D. were somewhat older than C.R. The questioning was not of the sort as to deprive C.R.'s statements of the degree of spontaneity and voluntariness required for the admission of A.V.'s fresh-complaint testimony.

Defendant additionally argues that, assuming A.K.'s testimony was proper fresh-complaint evidence, the trial court should have barred it under N.J.R.E. 403 because the probative value of the evidence was substantially outweighed by the risk of prejudice. We do not agree. The evidence was clearly probative to negate the inference that the alleged sexual assaults did not occur because C.R. had not reported them earlier. Moreover, the probative value of the evidence clearly outweighed any prejudice to the defense resulting from its admission.

Defendant also argues that the trial court did not properly instruct the jury regarding A.K.'s testimony. Defendant contends that the court erred by failing to include in its instruction on fresh-complaint evidence a directive that the jury not use the prior bad act evidence to establish defendant's disposition to commit the charged offenses. However, defendant's attorney did not seek this instruction at trial and the court's failure to include this statement in the charge was not erroneous, let alone an error clearly capable of producing an unjust result. R. 2:10-2.

As we have explained, defendant's attorney stated that A.K. had not, in fact, testified regarding other sexual assaults that defendant may have committed. Moreover, defendant's attorney told the court that he did not believe the jury had to be told that it could only consider A.K.'s testimony as it pertained to the events of May 4, 2007.

Furthermore, the court provided the jury with the model jury charge on fresh-complaint evidence, and instructed the jury that it could only consider the evidence for a limited purpose. The court pointed out that fresh-complaint evidence "is not evidence that the sexual offense actually occurred," or that C.R. was a credible witness. The court stated that fresh-complaint evidence "merely serves to negate any inference that because of [the victim's] assumed silence the offense did not occur." We are satisfied that the jury was correctly instructed on the use of the fresh-complaint testimony.

III.

Defendant contends that he was denied the effective assistance of counsel because his trial attorney failed to investigate and request a hearing to determine the admissibility and content of the testimony of the fresh-complaint witnesses. Claims of ineffective assistance of trial counsel often require consideration of evidence outside of the trial record and, therefore, such claims "are particularly suited for post-conviction review[.]" State v. Preciose, 129 N.J. 451, 460 (1992).

Because defendant's claim involves issues of trial preparation and strategy, which cannot be resolved based on the trial record, we defer consideration of this claim. Accordingly, defendant may raise his ineffective-assistance-of-counsel claim in a timely-filed petition for post-conviction relief.

IV.

Defendant also challenges his sentence. At sentencing, the trial court noted that defendant had been evaluated at the Adult Diagnostic and Treatment Center at Avenel, and a licensed psychologist had determined that his conduct was not characterized by a pattern of repetitive and compulsive behavior. The court accepted that finding and determined that defendant would serve his sentence in a State prison, rather than at Avenel.

The court then found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant has led a law-abiding life for a substantial period of time before committing the present offense). The court determined that the aggravating factors outweighed the mitigating factor, and noted that a presumption of incarceration applied.

The court imposed concurrent eight-year custodial terms, each with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43.2, on the two counts of sexual assault. The court also imposed a concurrent, flat four-year custodial term for endangering the welfare of a child. The court ordered defendant to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23, imposed a three-year period of parole supervision, and stated that defendant was subject to community supervision for life. Appropriate fines and penalties also were imposed.

Defendant argues that the trial court erred by finding aggravating factors three and six. He notes that his only prior conviction was for an offense that occurred forty-one years before he committed the offenses at issue here. Defendant contends that the court's findings on aggravating factors three and six are inconsistent with the court's finding that he had led a law-abiding life for a substantial period of time before he committed the offenses at issue in this case.

We find no merit in these arguments. Defendant was previously convicted of an offense, specifically, aggravated assault and battery with intent to ravish. Thus, he does have a prior criminal record. Moreover, the offense was a serious offense.

Defendant may have led a law-abiding life for a substantial time since his last criminal conviction, but defendant did, in fact, commit the additional crimes for which he was convicted in the case. Under these circumstances, the court reasonably assumed defendant might commit other crimes in the future. That assumption finds additional support in defendant's apparent lack of remorse. According to the report of the evaluation at Avenel, defendant blamed the victim and denied committing the offenses.

In sum, we are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.