STATE OF NEW JERSEY v. M.D.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00599-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.D.K.,

Defendant-Appellant.

______________________________________________

October 23, 2014

 

Submitted September 9, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-01-0025.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sara Fedorczyk, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant M.D.K. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The trial judge subsequently merged the two counts and sentenced defendant to a term of eight years imprisonment with eighty-five percent parole ineligibility. Having reviewed the record in light of the applicable law, we affirm.

The record reveals the following facts. In June 2010, defendant was living with his sister, J.C., her eight-year-old daughter A.C., and other family members. One night, while A.C. was alone watching television, defendant asked her to sleep in his room. As they watched television on his bed, defendant touched A.C. in the vaginal area several times, both inside and outside her underwear, despite A.C.'s attempts to push his hand away. Eventually, A.C. fell asleep and defendant carried her back to her bed.

Later the next morning, A.C. whispered to her mother that "Uncle [M.D.K.] made me sleep in his room last night." When J.C. asked what had happened, A.C. responded "he touched my underwear." J.C. then asked A.C. whether it was inside or outside of her underwear to which A.C. responded "both" and added, "I don't want it to happen again."

That afternoon defendant acknowledged to J.C. that A.C. had slept in his room the prior night, claiming she told him that she was scared. When J.C. asked defendant directly about A.C.'s allegations of inappropriate touching, defendant vigorously denied molesting A.C., stating, "[m]aybe I accidentally grabbed her the wrong way when I carried her back to bed, or maybe the cat, when the cat was in the bed with us, the cat was clawing at her."

The next day, when defendant entered the home, A.C. "got really scared," jumped into J.C.'s lap, and said, "I didn't know he was going to come here." After this event, J.C. took A.C. to the police station and A.C. provided a videotaped interview recounting the incident, which the jury later viewed during the trial. Defendant was later arrested and charged with sexual assault and endangering the welfare of a child.

As stated previously, a jury later convicted defendant on both counts and the judge sentenced him to an aggregate of eight years imprisonment subject to an eighty-five percent parole bar. This appeal followed.

Defendant raises the following points for our consideration

POINT I: THE TRIAL COURT'S OMISSION OF A FRESH COMPLAINT JURY CHARGE DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. ART. I, PARS. 1, 9, AND 10. (NOT RAISED BELOW).

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PROVIDED THE JURY WITH TESTIMONY NOT IN THE RECORD. AS A CONSEQUENCE, DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV: N.J. CONST., (1947), ART. I PAR. 10.

POINT III: THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE VICTIM'S CREDIBILITY DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND XIV; N.J. CONST., (1947), ART. 1 PAR. 10. (NOT RAISED BELOW).

POINT IV: THE SENTENCE OF EIGHT YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

Defendant first argues that the trial court erred when it failed to give a fresh complaint jury charge concerning A.C.'s initial reports to J.C. about the abuse. Prior to the trial, the trial judge held a Rule 104 hearing regarding whether A.C.'s statements to J.C. and to the police detective would be permitted at trial. The judge ruled that both sets of statements were admissible under the tender years exception to the hearsay, N.J.R.E. 803(c)(27) and during the trial declined to give a fresh complaint charge for that reason.

Defendant contends that A.C.'s statements the next day to her mother about the sexual touching were admissible solely for the limited purpose of dispelling the inference that the victim did not report the abuse, and that the jury's consideration of her statements for any other purpose was damaging to the defendant. Defendant maintains that the trial judge's failure to give the requested fresh complaint limiting instruction improperly prejudiced defendant. We find this contention to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).

Suffice it to say that a fresh complaint instruction was not required because the judge admitted A.C.'s statements under N.J.R.E. 803(c)(27), the tender years exception to the hearsay rule, which authorizes admission of a child-victim's out-of-court statements relating to sexual misconduct under certain circumstances. Defendant does not challenge the judge's conclusion that the requirements of N.J.R.E. 803(c)(27) were met here.

Unlike a statement admitted under the "fresh complaint rule," a statement admitted as an exception to the hearsay rule, such as the tender years doctrine, is admitted to prove the truth of the matter asserted. See State v. Hill, 121 N.J. 150, 163 (1990) (explaining that fresh complaint evidence is admissible for the limited purpose of negating an inference that a victim who was silent at the time of her assault was not in fact assaulted); see also State v. Coder, 198 N.J. 451, 464-65 (noting that the hearsay rule only applies when offering a statement to prove the truth of the matter asserted). Consequently, it would have been wholly inappropriate to give the jury an instruction limiting its consideration of A.C.'s statements when under the tender years doctrine, her statements were appropriately admitted to prove the truth of the matter asserted. See Id. at 470.

Next, defendant argues that the judge abused her discretion by permitting the jury to hear two versions of a small portion of A.C.'s testimony thereby introducing prejudicial testimony to the jury that never occurred. We find this argument unpersuasive.

During jury deliberations, the jurors requested that A.C.'s testimony be read back to them. The court reporter read from her transcript, but the State disputed the accuracy of the transcript in two related locations.

The court reporter read the disputed testimony elicited during defense counsel's cross-examination as

Q: That night before you went into [defendant's] bedroom, did you tell us any adults that you wanted to sleep, come with him that night?

. . . .

A: Nobody asked me to come into their room.

The State, after listening to the reporter's hard-to-hear audio recording thought the testimony was as follows.

Q: That night before you went into [defendant's] bedroom, did you tell anyone there was a ghost in the house, that you wanted to come sleep with him that night?

. . . .

A: He asked me to come to his room.

When the court and defense counsel listened to the audio recording of A.C.'s testimony, they both agreed that the audio recording was difficult to comprehend at those two disputed points. Based on the audio recording, defense counsel said, "I think the rational hearer could hear it either way to be honest with you because there is some background noise." After further discussion with the prosecutor and the court, defense counsel recalled that he had asked some witness a question about a ghost, and stated: "[w]e at least have to tell them the State's interpretation and say that it's . . . [t]heir recollection [that] controls." In the end, the court decided, partially on the recommendation of defense counsel, to allow the jury to hear the court reporter's version and the version that the State maintained was accurate.1

Generally, a trial court's rulings on evidentiary matters are reviewed under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). A court abuses its discretion when it makes a clear error of judgment. State v. Marrero, 148 N.J. 469, 483-84 (1996).

Here, defendant clearly invited the course of conduct to which he now objects. Generally, "errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . .'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987) (alterations in original)). Rather, in those cases, the question is whether the particular error "cut mortally into the substantive rights of the defendant. . . ." Id. at 562 (quoting Corsaro, supra, 107 N.J. at 345 (alteration in original)).

We find no such prejudice here. In fact, we perceive the judge's solution to be reasonable under the circumstances of this case. In the context of the entire trial, where the victim gave statements to her mother and the police and testified at the trial, one of these two answers in her testimony being incorrect does not deal a mortal blow to defendant's substantive rights. See Ibid. Moreover, any error that did occur was invited and was not "a fundamental miscarriage of justice." Id. at 562. Accordingly, we find no reversible error here.

Third, defendant argues that the State committed prosecutorial misconduct when, during his summation, the prosecutor vouched for the credibility of both the victim and the victim's mother. We do not agree.

Prosecutors must act under principles of fairness. State v. Echols, 199 N.J. 344, 359 (2009) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). Prosecutors do have "considerable leeway in making opening statements and summations." Id. at 359-60 (quoting State v. Williams, 113 N.J. 393, 447 (1988) (internal quotations omitted)). Even so, they must refrain from inaccurately stating either facts or law and limit comments both to facts proved at trial or reasonable inferences to be drawn from those facts. Id. at 360.

Reversal is only appropriate if a prosecutor fails to adhere to the above standards and the "conduct was 'so egregious as to deprive defendant of a fair trial.'" Ibid. (quotingWakefield, supra, 190 N.J. at 437). In reviewing the challenged conduct, we must focus on whether trial counsel responded to the conduct, and the overall tenor of the trial. Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). Generally, failure to make a timely objection is fatal to a claim of error on appeal, as such a failure "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. (quoting Timmendequas, supra, 161 N.J. at 576).

Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see also State v. Loftin, 146 N.J. 295, 390 (1996) (accepting the presumption that juries follow a court's instructions). An instruction to jurors "that statements by counsel are not evidence" is sufficient to keep a prosecutor's "clearly improper" statement from necessitating reversal of the trial court's verdict. See State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

During closing arguments, defense counsel challenged the credibility of the victim and her mother. The prosecutor responded by reviewing the evidence and remarking that nothing in the evidence demonstrated that A.C. and J.C. had a motive to lie. He also said at various times, "[w]hy would she say these specific allegations if they weren't true?" And "[t]hey had no motive to lie. And she wasn't lying when she drew this picture." Defense counsel raised no objection during summation to these comments.

Here, we are satisfied that there was no prejudicial prosecutorial misconduct that deprived defendant of a fair trial. Prosecutors have considerable leeway with their summations, and on the present facts, taking the summation as a whole, this prosecutor did not cross the line into improper comments by these fleeting remarks. Echols, supra, 199 N.J. at 359-60. The prosecutor was clearly responding to defense counsel's questioning of A.C.'s and J.C.'s credibility. Additionally, the judge charged the jury that the attorneys' remarks were not testimony, which corrected any potential damage done by counsel's remarks.

Finally, defendant challenges his sentence as excessive. He argues that the judge erred in finding the gravity and seriousness of the harm and risk of re-offense as aggravating factors. Additionally, defendant argues that the judge should have found a reoccurrence of the incident was unlikely and his attitude indicating that he was not likely to re-offend as separate mitigating factors.

We review a trial court's sentencing decisions under an abuse of discretion standard. See State v. Kirk, 145 N.J. 159, 175 (1996) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). The appellate court affords deference in reviewing sentencing determinations and "must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be affirmed unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

When determining an appropriate sentence, the court must "undertake[] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." Roth, supra, 95 N.J. at 359. We are satisfied that the trial court did not abuse its discretion either in finding the aggravating factors or mitigating factors.

The finding of aggravating factors (2), (3), and (9) were supported by substantial credible evidence in the record. The judge found that the gravity and seriousness of the harm inflicted on the victim was an aggravating factor. N.J.S.A. 2C:44-1(a)(2). The judge based this conclusion on the evidence of long term psychological and emotional harm inflicted on the victim. The victim both lived with defendant and was in a particular relationship of trust with defendant as he sometimes babysat her. Additionally, the findings of both factor (3) and (9) were further supported by the psychologist's finding that defendant was a repetitive, though not compulsive, sex offender. N.J.S.A. 2C:44-1(a)(3), (9).

As for mitigation, the trial judge found defendant's lack of a prior record was a factor. N.J.S.A. 2C:44-1(b)(7). However, defendant challenges the judge's failure to find that the circumstances were unlikely to recur and that the character and attitude of defendant indicated that he was unlikely to commit another offense. N.J.S.A. 2C44-1(b)(8), (9).

Again, we discern no error in the trial court's findings. The judge clearly took into account the letters that were written on behalf of defendant's character. But, in reconciling them with the jury's verdict, the judge explained that he could not find this factor as the family's letters of support showed that they were unfamiliar with this particular aspect of defendant's character. Further, the psychologist's evaluation finding that defendant was a repetitive sexual offender did not support defendant's claim that the offense was unlikely to happen again.

In sum, the judge was well within his discretion in finding that the aggravating factors substantially outweighed the mitigating factors. Our conscience is not shocked by this sentence.

Affirmed.

1 Apparently it was not possible to enhance the audio sufficiently for the jury to listen directly to it.