STATE OF NEW JERSEY v. R.H.

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NOT FOR PUBLICATION WITHOUT THE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.H.,

Defendant-Appellant.

July 23, 2015

Submitted April 29, 2015 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-01-0197.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant R.H. was convicted of seconddegree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree child endangerment, N.J.S.A. 2C:24-4(a) (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count four). The jury acquitted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one). On January 3, 2012, the trial judge, after granting the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:443(a), imposed: a term of fifteen years subject to eightyfive-percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on count two; ten years with five years of parole ineligibility on count three; and five years with two years of parole ineligibility on count four, all to be served concurrently. Appropriate Megan's Law requirements and parole supervision for life, along with mandatory fines and penalties, were also imposed. Defendant appeals and we affirm.

I.

Defendant, the victim's mother's boyfriend, began to live with the family on Bangs Avenue in Asbury Park sometime in 2005. In 2007, the family moved to Ridge Avenue. At some point in 2009, defendant and the victim's mother separated, although they occasionally saw each other outside the family home in an attempt to repair their relationship. During the relevant years, the household consisted of the victim, her mother, her two teenage sisters, and two brothers.

The thirteen-year-old victim testified at trial that defendant, starting in 2006, would awaken her while her mother was at work. At those times, he would touch her vagina, breasts, and buttocks with his penis. The victim said she could not remember how often he did so, except that it was more than ten times and it "hurt." Although the victim could not remember dates, she said that the sexual assaults stopped only when defendant moved out in 2009. She told no one because defendant threatened to kill her mother if she did so.

The victim disclosed defendant's abuse on August 19, 2010. Late that night, after she saw defendant standing near a shed in the backyard, she began crying and screaming, "[d]on't let him get me." She explained her reaction, first to her sister, and then to her mother. Police were called and escorted defendant from the premises, but the victim's mother did not go to the authorities about her daughter until the second day after the disclosure.

Prior to trial, the judge denied defendant's motion for a bill of particulars regarding the dates, times, and places of the alleged assaults. The judge explained that the victim's statements established a "continuous course" of conduct over years at certain addresses which sufficed to give defendant notice. Given her very young age at the time and defendant's threats to harm her mother, it was understandable that the victim would not have made any complaint for years. More specific information did not exist, but what was available satisfied the requirements of In re K.A.W., 104 N.J. 112 (1986).

At trial, the victim described the sexual conduct as only touching. When police conducted a videotaped interview, however, she reported that defendant had penetrated her vagina. The tape was played for the jury. The victim was extensively crossexamined regarding the sleeping arrangements in a bedroom she shared with one of her sisters, and an undated affectionate letter she had written to defendant.

The victim also reported conduct beyond touching when she met with Gladibel Medina, M.D., the State's expert pediatrician and specialist in child abuse. Medina testified that the child told her that defendant touched her body parts with his mouth and hands as well as his penis. Medina's examination revealed no abnormal findings, as is the case with ninety-five percent of the children who are examined in such situations, nor did she have a sexually transmitted disease. The victim's mother reported that she had not been infected by defendant, who had a history of herpes.

The victim's mother was extensively cross-examined regarding defendant's imposition upon the victim's older sisters of rules requiring modest dress and limiting contact with boyfriends. The sisters resented him for this and, once he left, did not want him to return. Counsel also cross-examined the victim's mother regarding the victim's letter, highlighting that the affection it expressed cast doubt on any suggestion that defendant was repeatedly sexually molesting her. The victim's mother also acknowledged that her efforts at reconciling with defendant all took place outside the home, as she knew the children opposed defendant's return.

During the trial, the court addressed the Sands/Brunson1 issue of defendant's prior convictions for possession of a controlled dangerous substance in 1990, school-zone possession and resisting arrest in 1994, third-degree possession of a prohibited weapon in 2000, fourth-degree possession of a weapon in 2001, and fourth-degree contempt of court and third-degree terroristic threats in 2002. Defendant was sentenced to probation for the third-degree terroristic threats, and violated his conditions. He was resentenced to a four-year state prison term in 2003, which the court considered "a relatively short amount of time" from the trial. Thus the judge ruled that the 2000, 2001, and 2002 convictions could be used. However, he directed that the State could not examine defendant about the sentences imposed for those convictions. The judge's rationale for doing so was that he did not "want the jury to believe or consider that [defendant] was in prison for four years and then exited prison and started what the State alleges was a series of sexual assaults upon [the victim]" because it would be too prejudicial. Defendant elected not to testify.

At the charge conference, defense counsel requested a "false in one, false in all" instruction. Model Jury Charge (Criminal), "False in One - False in All" (2013). The judge declined. He did, however, tailor the model jury charge on inconsistent statements by witnesses to the case, including specifying the facts the witnesses testified to which were inconsistent with earlier statements. Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994). He essentially tracked the model charge

You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefore.

. . . .

The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider their materiality and relationship to the witness'[s] entire testimony and all the evidence in the case, when, where, and the circumstances under which they were said or omitted and whether the reasons the witness gave you, therefore, appear to you to be believable and logical.

In short, consider all that I have told you before about prior inconsistent statements or omissions. You will of course consider other evidence and inferences from other evidence including statements of other witnesses or acts of the witnesses and others, disclosing other motives that the witness may have had to testify as the witness did; that is, reasons other than that which the witness gave to us.

The judge read the jury the model jury charge on credibility, closing with the phrase "[t]hrough this analysis as the judges of the facts, you weigh the testimony of each witness and then determine the weight to give to it. Through that process you may accept all of it, a portion of it, or none of it." Model Jury Charge (Criminal), "Criminal Final Charge Parts 1 & 2 (General Information to Credibility of Witnesses)" (2014).

In sentencing defendant, the court found that the record did not support any mitigating factors. He did find aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (9). Because he had relied upon the more recent convictions to impose an extended term, he relied solely upon the earlier convictions to support the aggravating factors. The judge included defendant's refusal to accept responsibility for the crimes of which he had been convicted as a consideration in assessing aggravating factor three. He gave aggravating factor nine particular individualized weight because

[R.H.] really has contempt for women. He has a history of domestic violence restraining orders. He has a history of violating them. And in this particular case he preyed upon . . . a young girl, and he needs to be specifically deterred from committing acts of violence, such as the act in this case, against women, so he needs specific deterrence. And in addition to that, there is . . . the general deterrence which the [c]ourt may also take into consideration.

II

On appeal, defendant raises the following points for our consideration

POINT ONE

THE INDICTMENT, ALLEGING THAT THE SEXUAL ABUSE IN THIS CASE OCCURRED AT UNSPECIFIED TIMES DURING A THREE-YEAR TIME PERIOD, LACKED SUFFICIENT SPECIFICITY, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS.

POINT TWO

THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT THREE

THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF THE DEFENDANT'S REMOTE CONVICTIONS.

POINT FOUR

DEFENDANT'S FIFTEEN-YEAR EXTENDED TERM IS NOT SUPPORTED BY A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS.

A.

Defendant contends that the lack of specificity in the child's allegations fails to satisfy the notice requirements of the due process clause, and thus fails to meet the requirements of K.A.W., supra, 104 N.J. at 112.

It is axiomatic that an indictment "must charge the defendant with the commission of a crime in reasonably understandable language setting forth all . . . critical facts and . . . essential elements" of the alleged offenses so as to enable the defendant to prepare a defense. State v. Wein, 80 N.J. 491, 497 (1979). However, when an indictment charges a sexual crime against "a young victim[, it] will not have to be as exacting when specifying dates of abuse." State v. C.H., 264 N.J. Super. 112, 125 (App. Div.), certif. denied, 134 N.J. 479 (1993); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2.3 on R. 3:7-3 (2015) (noting that an indictment involving a child victim is adequate if it "otherwise gives defendant sufficient notice of the crimes to permit him to prepare his defense").

In assessing whether a defendant has received sufficient notice in cases involving allegations of sexual abuse against minor victims, the Supreme Court has instructed trial courts to consider

the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.

[K.A.W., supra, 104 N.J. at 122 (internal quotation marks omitted).]

Furthermore, "the central issue is whether, in light of the facts in the particular case (e.g. the age of the victim, the number of offenses[,] and the time period involved), the defendant had received 'fair notice' of the charges against him." State v. Hass, 218 N.J. Super. 133, 138 (App. Div. 1987).

In the present case, defendant had fair notice of the allegations. The indictment originally recited that the abuse occurred on diverse dates between September 1, 2006, and August 20, 2010, but was later amended because defendant had no access to the child after October 2009. The judge who denied defendant's motion for a bill of particulars noted that the child was only able to set the parameters based on her age, the street where she was living, and the fact she was sexually assaulted while her mother worked and defendant was watching the children.

Defendant argues on appeal, as he did before the judge on the motion and during the trial, that the lack of dates denied him the opportunity to present specific defenses, such as an alibi defense. But where a victim who was a child at the time alleges a course of conduct over years, this argument is unavailing. K.A.W., supra, 104 N.J. at 123. The judge did not abuse his discretion by denying defendant's request for a bill of particulars. Defendant was not denied due process merely because the child victim could not pinpoint the dates of the occurrences.

B.

Defendant also contends that the court erred by failing to include the false in one, false in all jury charge. The charge reads

If you believe that any witness or party willfully or knowingly testified falsely to any material fact in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

Model Jury Charge (Criminal), "False In One False in All" (2013).

It is well-established that the inclusion of this charge, like other inferences, is permissive rather than mandatory. Thus, a trier of fact who finds an inaccuracy in a witness's testimony may, but need not, entertain the inference. State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960) (citing State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937), aff'd, 119 N.J.L. 464 (E. & A. 1938)); see also State v. Humphrey, 183 N.J. Super. 580, 584 (Law Div. 1982), aff'd, 209 N.J. Super. 152 (App. Div. 1986) (contrasting permissive nature of inferences with compulsory nature of presumptions). Even where false in one, false in all is not given, a juror is instructed to evaluate a witness's credibility in the same fashion. A juror may accept all, some, or none of a witness's testimony. The difference is that false in one refers to witnesses who testify "falsely . . . with the intent to deceive you."

Ultimately, whether to administer the false in one, false in all charge falls within the trial court's discretion. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). Generally, the charge should be given when it is shown that a witness consciously lied about a material fact. Ibid.

Although defendant alleges that the victim gave false testimony, he fails to identify any specific testimony as consciously false and material. Instead, he highlights the fact that "there were discrepancies between [the victim's] statement [to police] and trial testimony."

Certainly, our review on appeal would have benefitted from the judge expanding on his decision not to give the instruction. It is clear from the record, however, that the discrepancies in the child's statement did not suggest deliberate falsehood. If anything, the discrepancies worked to defendant's benefit because, when in his presence during the trial, the victim appeared to have difficulty in responding, and omitted her prior description of penetration. Despite hearing her describe the penetration in the videotaped interview, and hearing Medina's testimony regarding similar statements the child made to her, defendant was acquitted of that offense the most serious firstdegree charge. The jury only convicted defendant on the offenses the victim described from the witness stand. Defendant does not specify, nor can we discern, details warranting the false in one, false in all charge.

Furthermore, the court gave an extensive witness discrepancy instruction, tailored to the facts of the case. He explained to the jury, in words different from the general credibility instruction, that the jury could find, based on the discrepancies, that the victim was untruthful. Thus we do not consider the failure to give the false in one, false in all instruction to be an abuse of discretion. And even if the omission were an abuse of discretion, when viewed "in light of the entire charge [and] the overall strength of the State's case," it would not constitute error "clearly capable of producing an unjust result." State v. Galicia, 210 N.J. 364, 388 (2012) (internal quotation marks omitted); R. 2:10-2.

C.

Next, defendant contends that the judge erred by ruling that his prior convictions could be brought out if he testified. "[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); Brenman v. Demello, 191 N.J. 18, 31 (2007)).

In State v. Sands, the Supreme Court stated

We hold that whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one which should be guided by the considerations which follow. Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.

[ 76 N.J. 127, 144 (1978).]

Under N.J.R.E. 609, New Jersey permits the admission of "a witness's prior convictions . . . for impeachment purposes despite the obvious prejudice that flows from such evidence, particularly for a criminal defendant." State v. Hamilton, 193 N.J. 255, 256 (2008). The Court in 2012 declined to abandon N.J.R.E. 609 in favor of the approach utilized in Federal Rule of Evidence 609, which employs a bright-line rule barring the admission of convictions which are more than ten years old. State v. Harris, 209 N.J. 431, 445 (2012).

N.J.R.E. 609(b)(1) was amended effective July 1, 2014, and now reads

If, on the date the trial begins, more than ten years have passed since the witness's conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.

Thus even the amended rule requires a judge to weigh probative value against prejudice.

Defendant's release from imprisonment in 2006 was less than ten years from the date of trial. Defendant's 2002 conviction would have been exactly ten years from the date of trial. Although the current rule was not in effect at time of trial, it succinctly describes the process by which the judge ruled on the prior convictions in this case. Since defendant was released in 2006, only six years prior to trial, and that imprisonment flowed from the last of three convictions occurring within a three-year period, the judge opined that they were not too remote. We agree.

D.

Finally, defendant argues that his sentence was excessive, but his claim that the judge relied on the same convictions in imposing the extended term and in setting the term of imprisonment is not supported by the record. The judge explicitly relied on the more recent convictions in setting an extended term, then on the older convictions in finding aggravating factors three and six. Having found no support for any mitigating factor, the judge was left only with aggravating factors three, six, and nine. The judge explained that he gave aggravating factor nine particular weight because defendant's past convictions and conduct towards the victim showed a "contempt for women." This included violation of domestic violence restraining orders.

We affirm the trial court's sentence unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. at 334, 364-65 (1984)).

In this case, the sentencing guidelines were not violated, the findings regarding aggravating and mitigating factors were grounded on competent, credible evidence in the record, and the application of the guidelines to the facts does not shock our conscience. A fifteen-year sentence for a defendant with a prior criminal history who repeatedly sexually assaulted his girlfriend's child while babysitting her, when she was between the ages of six and nine, does not shock our conscience.

Affirmed.

1 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).