STATE OF NEW JERSEY v. B.M.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1018-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.M.J.,

Defendant-Appellant.

______________________________________________

December 21, 2016

Argued November 1, 2016 Decided

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0204.

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor; Ms. Shashoua, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant B.M.J., was convicted of the lesser-included offense of second-degree sexual assault of O.M., N.J.S.A. 2C:14-2(b) ("an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim"), and second-degree kidnapping, N.J.S.A. 2C:13-1(b)(4) and (c)(1). Defendant was acquitted of second-degree endangering the welfare of O.M. N.J.S.A. 2C:24-4(a). The judge imposed consecutive six-year sentences on each count, subject to an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).

Before us, defendant raises the following points

POINT I

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENT IN O.M.'S POLICE INTERVIEW WAS ADMISSIBLE AS BOTH EVIDENCE AFFECTING CREDIBILITY AND AS SUBSTANTIVE EVIDENCE. U.S. CONST., Amends. 5, 14; NEW JERSEY CONST., Art. 1, para. 1 and 10.

POINT II

THE AGGREGATE TWELVE-YEAR SENTENCE WITH AN 85% PERIOD OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal principles. We affirm.

The testimony at trial was completed in one day. In summer 2012, twelve-year-old O.M. returned to live with her mother in North Carolina after having spent several months in New Orleans with her father. Her mother, B.L.K., noticed O.M.'s frequent phone conversations with someone known only as "Benny." During one such conversation, B.L.K. grabbed the phone and told Benny that her daughter was only twelve-years-old, and he should "please leave her alone."

One morning, O.M. told her mother she was going to the store across the street from their home. When O.M. failed to return, B.L.K. called the police and reported her daughter missing. B.L.K. never heard from her daughter again until four months later, in October, when O.M. called and said she was going to New York. B.L.K. called the police and provided the phone number from which O.M. had made the call.

Detective Jose Torres of the Camden Police Department testified his department received a call from North Carolina authorities, as a result of which, on October 19, 2012, Torres and two officers were dispatched to an address in the city. As they were escorted through the house by one of its occupants, Torres came upon a locked bathroom door. Defendant, who was inside, opened the door and told Torres no one was in the bathroom with him. However, the detective walked inside and found O.M. hiding behind the shower curtain, wrapped in a towel. Torres believed defendant and O.M. had just finished showering together, and both appeared nervous. On cross-examination, Torres stated O.M. told police she had been fighting with her mother before she left home.

O.M. testified she and defendant met online and a romance developed. She never told him her age, but she knew defendant was twenty-years old. In July 2012, defendant met O.M. in North Carolina, and they boarded a bus to Camden, where they stayed together, first with defendant's mother and then with his mother's friend. O.M. stated on the day police arrived, she and defendant had showered together, and they regularly engaged in sexual intercourse.

During cross-examination, O.M. denied that she had fought with her mother before leaving home. Defense counsel then confronted O.M. with the statement she gave to Camden Police, in which O.M. claimed she left home after arguing repeatedly with her mother. When asked, O.M. said she did not recall making that statement to police.

Defendant elected not to testify, but his mother, M.E.J., did. She stated that, O.M. said she was eighteen-years old when she arrived. M.E.J. did not believe her but, nonetheless, helped her get an identification card with a false date of birth. Defendant's mother testified that O.M. said B.L.K. knew she was in Camden with defendant.

During the charge conference, defense counsel requested the judge provide Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994) (the Model Charge). In relevant part, the Model Charge provides

Evidence, including a witness' statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.

[Ibid.]

The judge, however, concluded O.M. had not provided a prior inconsistent statement because she "never denied saying certain things," she only said, "I don't remember." The judge further reasoned, "[i]f the witness had said the officers typed something that I didn't say, that's an inconsistent statement . . . ." Nonetheless, the judge told defense counsel to prepare the requested charge, and she would reconsider her ruling the following morning.

When trial reconvened the next day, defense counsel withdrew her request to provide the Model Charge. In summation, defense counsel stressed a number of inconsistencies in O.M.'s testimony, and between her testimony and B.L.K.'s testimony. Counsel reiterated that O.M. told police about fighting with her mother before leaving, lied about her age and "wanted to leave her house . . . to go hang out with [defendant.]"

Defendant argues the judge committed reversible error by not providing the Model Charge. The State contends the argument is barred by application of the invited error doctrine, and, in any event, if there was error, it did not amount to plain error. See R. 2:10-2. We find no reason to reverse.

Initially, we agree with defendant that O.M.'s trial testimony she did not fight with her mother before leaving North Carolina with defendant was inconsistent with her prior statement to police. Whether O.M. remembered making the statement is irrelevant to its admissibility pursuant to N.J.R.E. 803(a)(1) (excepting from the hearsay rule prior statements made by a witness that are inconsistent with the witness' testimony at trial). In other words, the statement O.M. made to police was admissible as substantive evidence because it was inconsistent with her testimony at trial. Even if O.M. did not recall giving the specific answer to Torres, she never denied making the statement, and there was ample evidence that the statement she gave was accurately recorded.

Pursuant to the doctrine of invited error, "trial 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)) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). However, the Court has clarified that "the invited-error doctrine . . . is implicated only when a defendant in some way has led the court into error." State v. Jenkins, 178 N.J. 347, 359 (2004) (emphasis added).

The invited error doctrine does not apply. Defense counsel requested the judge provide the Model Charge, but the judge concluded it was inapplicable. Defendant's request did not cause the judge to make that erroneous ruling. Although the judge indicated defendant should submit the proposed charge for reconsideration, defense counsel chose not do so. Since defense counsel specifically withdrew the request, we agree with the State's alternative argument that we must consider whether the failure to give the Model Charge was plain error.

The Court has said that

[i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

Defendant argues that without proper instructions, the jury did not understand it could accept O.M.'s statement to police, that she had fought repeatedly with her mother prior to running away with defendant, as substantive evidence. O.M.'s contentious relationship with B.L.K., he contends, raises a reasonable doubt as to whether defendant "had engaged in sexual conduct" with O.M. We fail to see the nexus, and generally agree with the State that the prior statement lacked any "substantive exculpatory value." Moreover, the substance of O.M.'s statement was introduced through Detective Torres' testimony, and defense counsel reiterated the point during her summation. In short, the failure to provide the Model Charge was not plain error requiring reversal.

In sentencing defendant, the judge found aggravating factors three and nine. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (a)(9) (the need to deter). Because defendant had no prior criminal record, the judge also found mitigating factor seven. N.J.S.A. 2C:44-1(b)(7). After an extended colloquy with defense counsel regarding the factors outlined in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge rejected defendant's request for concurrent sentences and imposed two consecutive, six-year terms of imprisonment subject to NERA.

Before us, defendant argues aggravating factor three does not apply, the judge failed to apply numerous mitigating factors that are supported by the record and she failed to consider all the Yarbough factors. We disagree and affirm the sentences imposed.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011).

The appellate court must affirm the sentence 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."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if sentences should run concurrently or consecutively." Miller, supra, 205 N.J. at 128. "When a sentencing court properly evaluates the Yarbough factors1 in light of the record, the court's decision will not normally be disturbed on appeal." Id. at 129.

Here, the judge found that defendant was likely to reoffend because B.L.K. told defendant to stop contacting O.M., but he ignored the entreaty, "continued to pursue" O.M. and eventually kidnapped and sexually assaulted her. We agree these facts support a finding as to aggravating factor three.

Defendant reiterates the argument rejected by the trial judge that mitigating factors five, eight and nine also apply. N.J.S.A. 2C:44-1(b)(5) (the victim's conduct "induced or facilitated" the crime); (b)(8) (defendant's conduct occurred in circumstances unlikely to recur); (b)(9) (defendant's character and attitude make it unlikely he will re-offend). The judge properly concluded factor five did not apply because O.M. was twelve-years old and could not legally consent to defendant's conduct. As to factors eight and nine, after considering all of the testimony, the judge concluded defendant's conduct was part of a "deception" to keep O.M. away from her mother and in New Jersey. We find no error.

Lastly, defendant argues that consecutive sentences were unwarranted. However, the judge rejected defense counsel's argument that both crimes were part of a single, aberrant episode of behavior. She concluded the kidnapping and sexual assault "were predominantly independent of each other," Yarbough, supra, 100 N.J. at 644, occurring in two states at different times over an extended period. The judge did not mistakenly exercise her broad discretion by imposing consecutive sentences for the kidnapping and sexual assault convictions.

Affirmed.

1 The Yarbough factors are

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]

[Yarbough, supra, 100 N.J. at 643-44.]

A sixth factor, imposing an overall outer limit on consecutive sentences, was superseded by legislative action. See State v. Eisenman, 153 N.J. 462, 478-79 (1998); N.J.S.A. 2C:44-5(a).