STATE OF NEW JERSEY v. R.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

___________________________

March 10, 2014

 

 

Before Judges Fuentes, Simonelli and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-05-0834.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant R.L. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial judge imposed an aggregate seven-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-2 to -23, and parole supervision for life (PSL). The judge also imposed the appropriate assessments, penalties, and surcharges.

On appeal, defendant's appellate counsel raises the following contentions:

POINT I

 

THE COURT VIOLATED R.L.'S RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE BY PRECLUDING HIM FROM PRESENTING EVIDENCE OF A PRIOR FALSE ALLEGATION OF ABUSE BY [KARL]1 AS PERMITTED BY N.J.R.E. 608(b). [U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, [ ] 1, 10.]

 

1. The Credibility Of [Karl] Was Central In This Case.

 

2. [Karl's] Prior False Allegation Of Physical Abuse At The Hands Of [Helen] Is Comparably Similar To The Charge Of Sexual Assault By Criminal Sexual Contact.

 

3. [Karl's] Prior False Allegation Was Not Remote To The Allegations Made In This Case.

 

4. Prongs Four And Five Of Guenther Both Inure In Favor Of Admissibility.

5. The Court's Remedy Of Admitting The Sanitized Version Was Insufficient In That The Sanitized Version Of Events Amounted To A Prior Inconsistent Statement And Not The Pointed Credibility Evidence Envisioned By The Court In Guenther.

 

POINT II

 

[WITHDRAWN]

 

POINT III

 

THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, R.L. WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND.

 

A. R.L. Cannot Be Punished For Exercising His Constitutional Rights To A Trial.

 

B. The Sentencing Court's Analysis Of Deterrence Was Fundamentally Flawed.

 

1. Because R.L.'s Offense Was Intrafamilial, He Is Less Likely To Re[-]offend In The Future.

 

2. Because R.L. Will Be Strictly Monitored Upon His Eventual Release, He is Less Likely To Re[-]offend In The Future.

 

Defendant raises the following contentions in a pro se supplemental brief.

POINT I: APPELLANT SUBMIT[S] THAT HIS BEING DENIED CONFRONTATION AND CROSS EXAMINATION, CONTRARY TO THE [UNITED STATES CONSTITUTION SIXTH AMENDMENT] RIGHT (CRAWFORD V. WASHINGTON, INFRA. AND DAVIS V. WASHINGTON, INFRA.) THAT'S ECHOED IN N.J. CONST., ART. I, [ ] 1, 9 & 10.

 

POINT II: THE INDICTMENT THEREFORE WAS RETURNED UNCONSTITUTIONAL[LY] NEVER DISTINGUISHING BETWEEN FACIAL UNCONSTITUTIONALITY AND FRINGE AREA DURING THE PRESENTATION OF THE INSTANT CASE BEFORE THE GRAND JURY THAT WAS KNOWINGLY AND INTELLIGENTLY PROSECUTOR'S MISCONDUCT.

 

POINT III: NO FORENSIC OR PHYSICAL EVIDENCE EVER TAKEN PROVED ANY FORM OF AN ALLEGED SEXUAL PENETRATION/ ASSAULT UPON/AGAINST THE ALLEGED VICTIM IN THE CASE AT BAR.

 

POINT IV: TENDER YEARS [EXCEPTION] WAS ABUSED [BY] NOT HOLDING A COMPETENCY HEARING PURSUANT TO N.J.R.E. 601 DENIED A FAIR TRIAL AND DUE PROCESS OPPORTUNITY TO DEFEND AGAINST THE CRIMINAL ALLEGATIONS AT BAR.

 

POINT V: THE DENIAL OF FALSE PRIOR ACCUSATION, PURSUANT TO N.J.R.E. 608(b) WAS A PREJUDICIAL HINDERANCE TO AN EFFECTIVE DEFENSE TO THE ALLEGATIONS AT BAR.

 

POINT VI: APPELLANT'S VERDICT SHEET DID NOT COMPORT WITH THE JURY CHARGE OF LESSER INCLUDED ELEMENTS THAT DEPRIVED THE JURY TO EXERCISE [ITS] CONSTITUTIONAL DUTY TO BE THE SOLE JUDGE[] OF THE FACTS AND EVIDENCE.

 

We reject these contentions and affirm.

The charges against defendant stemmed from the sexual assault of his six-year-old granddaughter, Nancy. The assaults occurred in defendant's home while he babysat Nancy and Karl, her seven-year-old brother, Monday to Friday after school until approximately 8:00 p.m.

Nancy's father, John, testified that during his parenting time in September 2009, Nancy disclosed that someone was touching her. He pressed the child for more detail, but she would not respond or identify the perpetrator.

Nancy's mother, Helen, testified that Nancy admitted what she had told her father, but then denied that someone was touching her. A few weeks later, Karl and Nancy disclosed that defendant always went with Nancy into the bathroom. Karl also disclosed that on one occasion, defendant and Nancy were in the bathroom for a long time, and when they exited, defendant took Nancy to his bedroom. Nancy eventually said that defendant was "humping on her," and demonstrated how he pushed his body against her body and gyrated. Karl said that this happened more than once. Nancy testified that defendant placed part of his body on her lap area and "humped" her, this happened "[a] lot" in the bathroom and bedroom, she asked him to stop but he did not stop, and she was afraid to tell anyone.

Nancy's therapist testified that Nancy said defendant touched her "private parts." A medical doctor who examined Nancy testified that the examination was normal, and there was no evidence of bruising or penetration into the child's vaginal canal or anus, and no evidence of bruising. The doctor admitted, however, that in ninety-five percent of most sexual abuse cases, there is a normal examination, no bruising, and no physical evidence of sexual abuse.

Karl testified that he saw defendant and Nancy in defendant's bedroom; Nancy's pants were down; defendant's pants were "kind of down;" defendant had his penis "in her butt;" defendant "usually would do it every single day;" and defendant was "forcing" Nancy. He also testified that he never told anyone that someone abused him or that someone was being physically abused.

Defendant sought to discredit Karl by introducing evidence pursuant to N.J.R.E. 608(b)2 that in January 2010, the child falsely accused Helen of physically abusing him. At an N.J.R.E. 104 hearing held after the close of the State case, Helen testified that Karl told a therapist that she had hit him with a flip-flop sandal. Karl subsequently admitted it was defendant who hit him and Nancy with various objects, and he lied so as not to get defendant in further trouble.

The judge precluded the evidence finding it did not meet the standard for admission under N.J.R.E. 608(b). In an oral opinion, the judge acknowledged there was a basis to find that Karl made a prior false accusation of physical abuse. The judge concluded, however, that the prior false accusation was "not at all similar" to the crimes with which defendant was charged; it was made by a different accuser against a different abuser; it was too remote to the sexual abuse allegation made several months earlier; and it would complicate the issues in this case. Nevertheless, because Karl denied that anyone physically abused him, the judge permitted limited testimony from Helen about the prior false accusation as a prior inconsistent statement. Helen testified before the jury that Karl made an allegation of physical abuse by someone else, but never made another allegation of sexual abuse.

I.

Defendant's appellate counsel contends in Point I that because defendant established the five factors in State v. Guenther, 181 N.J. 129, 157 (2004), the judge erred in precluding Karl's prior false accusation. Counsel argues that Karl's credibility was central to the case; the prior false accusation was comparably similar to the charge of sexual assault by criminal sexual contact; the false accusation was not remote to the allegations made in this case; and there was limited extrinsic evidence, no undue prejudice, and no confusion or wasteful consumption of time.

We review a trial court's evidentiary determinations under an abuse of discretion standard. State v. J.D., 211 N.J. 344, 354 (2012). "We afford considerable deference to a trial court's findings on the admissibility of evidence based on the testimony of witnesses." State v. Buckley, 216 N.J. 249, 260 (2013). However, we owe no special deference to a trial court's interpretation of the law, and review issues of law de novo. Id. at 261.

N.J.R.E. 608(a) precludes evidence of specific instances of conduct, other than by a prior conviction, to prove a witness's character for truthfulness or untruthfulness. Our Supreme Court created a narrow exception to this rule, in limited cases and under very strict controls, permitting a defendant to show that a victim-witness made a prior false criminal accusation for the purpose of challenging the witness's credibility. Guenther, supra, 181 N.J. at 154. However, the false prior accusation "cannot become such a diversion that it overshadows the trial of the charges itself." Id. at 156.

In deciding whether to admit evidence of a prior false accusation, the trial court must conduct an N.J.R.E. 104 hearing and then determine by a preponderance of the evidence whether the defendant has proven that the victim-witness made a prior accusation charging criminal conduct and whether that accusation was false. Id. at 157. The trial court may consider the following factors in making its determination:

1. whether the credibility of the victim-witness is the central issue in the case;

 

2. the similarity of the prior false criminal accusation to the crime charged;

 

3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;

 

4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and

 

5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time.

 

[Ibid.]

 

If the court concludes that evidence of the prior false accusation is admissible, it "has the discretion to limit the number of witnesses who will testify concerning the matter at trial. The court must ensure that testimony on the subject does not become a second trial, eclipsing the trial of the crimes charged." Ibid.

Following Guenther, in 2007, the Legislature amended N.J.R.E. 608 to include paragraph (b), which provides as follows:

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

 

[N.J.R.E. 608(b).]

 

Thereafter, elaborating on its holding in Guenther, our Supreme Court explained

Guentherrecognizes that a witness's prior false criminal allegations may be relevant to the witness's credibility. That logic applies with equal force to false criminal allegations made soon after the primary allegation. As defendant aptly observes, a false accusation after an event, if closer in time, can be even more probative than a prior false allegation.

 

[State v. A.O., 198 N.J. 69, 93 (2009).]

We discern no abuse of discretion in the judge's preclusion of Karl's prior false accusation, and affirm for the reasons th3e judge expressed. We add the following brief comments.

Although Karl's testimony was important, his credibility was not a central issue in this case. Nancy, the victim, was an important witness whose credibility was central. In order to convict defendant of sexual assault, the State had to prove beyond a reasonable doubt that defendant intentionally committed "an act of sexual contact with a victim who is less than 13 years old and [defendant] was at least four years older than the victim." N.J.S.A.2C:14-2b. "Sexual contact means an intentional touching by . . . defendant, either directly or through clothing, of [the victim's] or defendant's intimate parts for the purpose of degrading or humiliating [the victim] or sexually or gratifying defendant." Model Jury Charge (Criminal), "Sexual Assault Victim Less Than 13 Actor At Least 4 Years Older Than Victim (N.J.S.A. 2C:14-2b)" (2008). "Intimate parts means sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." Ibid. Nancy's testimony that defendant "humped" her in her lap area was sufficient for the jury to find defendant guilty of sexual assault crime beyond a reasonable doubt.

 

II.

In Point III, assigned counsel contends that defendant's sentence is excessive and unduly punitive because the judge improperly considered defendant's denial of guilt as an aggravating factor. Counsel also contends that the judge weighed too heavily aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A.2C:44-1a(9). Counsel argues that defendant is less likely to reoffend because this was intrafamilial sexual abuse and defendant will be strictly monitored under Megan's Law and PSL.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, ___ N.J. ___, ___ (Jan. 7, 2014) (slip op. at 13). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. State v. Miller, 205 N.J. 109, 127 (2011). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

The record does not support appellate counsel's contention that the judge improperly considered defendant's denial of guilt as an aggravating factor. The judge mentioned defendant's denial of guilt when summarizing information contained in the presentence report and defendant's psychological examination and before discussion of any aggravating factors.

The record supports the judge's decision to place substantial weight on aggravating factor nine. Sexually assaulting a child, whether a family member or not, must be strongly deterred. Defendant cites no authority permitting a reduced sentence because he is subject to Megan's Law and PSL. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

III.

We have considered the contentions raised in defendant's pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The names used in this opinion are fictitious.

2 N.J.R.E. 608(b) provides as follows:

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to [N.J.R.E.] 104(a), that the witness knowingly made the prior false accusation.