STATE OF NEW JERSEY v. BRIAN HORNE

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0906-19T1

STATE OF NEW JERSEY,

     Plaintiff-Appellant,                 APPROVED FOR PUBLICATION

v.                                                 April 7, 2020

                                              APPELLATE DIVISION
BRIAN HORNE,

     Defendant-Respondent.
________________________

           Argued March 11, 2020 – Decided April 7, 2020

           Before Judges Koblitz, Gooden Brown and Mawla.

           On appeal from an interlocutory order of the Superior
           Court of New Jersey, Law Division, Gloucester
           County, Indictment No. 18-04-0303.

           Steven J. Salvati, Assistant Prosecutor, argued the
           cause for appellant (Charles A. Fiore, Gloucester
           County Prosecutor, attorney; Steven J. Salvati, on the
           brief).

           Frank J. Hoerst, III, argued the cause for intervenor
           Irene Kropp.

           Vincent J. Pancari argued the cause for respondent
           (Capizola Pancari Lapham and Fralinger, PA,
           attorneys, join in the brief of intervenor Irene Knopp).

     The opinion of the court was delivered by
KOBLITZ, P.J.A.D.

      We determine in this case of first impression that the term "child" in the

spousal privilege exception means an unemancipated child.          See  N.J.S.A.

2A:84A-17(2)(b) and N.J.R.E. 501(2)(b). Following an altercation with his

twenty-seven-year-old stepson, Matthew Farrell, defendant Brian Horne was

charged with fourth-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(4), and

second-degree possession of a weapon for an unlawful purpose,  N.J.S.A.

2C:39-4(a)(1). Prior to trial, the State filed a motion to compel the testimony

of intervenor Irene Kropp, defendant's wife and Farrell's mother. The trial

court denied the motion, and after granting leave to appeal, we now affirm.1

      We review questions of statutory interpretation de novo. In the Matter

of H.D., ___ N.J. ___, ___ (2020) (slip op. at 7). "Our review, however, must

follow the well-settled rules of statutory construction to 'determine and give

effect to the Legislature's intent.'" Ibid. (quoting DYFS v. A.L.,  213 N.J. 1, 20

(2013)). "Generally, 'the best indicator of that intent is the plain language


1
     We also grant the intervenor's motion to exclude the seventy-page
submission of documents provided by the State to furnish a "background" as
this evidence was not presented to the trial court and no motion to supplement
the record was filed. See R. 2:5-4(a); Liberty Surplus Ins. Co. v. Nowell
Amoroso, P.A.,  189 N.J. 436, 452 (2007) ("Our appellate courts will not
ordinarily consider evidentiary material that is not in the record below.").


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chosen by the Legislature.'" Ibid. (quoting State v. Frye,  217 N.J. 566, 575

(2014)). "We will not 'rewrite a plainly-written enactment of the Legislature

[or] presume that the Legislature intended something other than that expresse d

by way of the plain language.'" Ibid. (alteration in original) (quoting State in

Interest of K.O.,  217 N.J. 83, 91-92 (2014)).

      "[I]f the plain language is ambiguous, [we] will look to extrinsic

evidence, including 'legislative history and relevant canons of statutory

construction,' to determine the Legislature's intent."     Id. at 7-8 (citation

omitted) (quoting State v. Shelley,  205 N.J. 320, 325 (2011)).

      The State argues that the trial court erred in finding that the "spousal

privilege" exception did not apply in this case. The State asserts that the

"plain language of the statute and rule are clear and unambiguous: the 'spousal

privilege' does not apply when the accused is charged with offenses against a

child of the spouse." The State asserts that there is no dispute that Farrell is

Kropp's son and Kropp is married to defendant, therefore, the spousal privilege

should not apply in this case.

      The spousal privilege, codified in 1960 and amended in 2006 to include

"one partner in a civil union couple," provides:

            The spouse or one partner in a civil union couple of
            the accused in a criminal action shall not testify in

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            such action except to prove the fact of marriage or
            civil union unless (a) such spouse or partner consents,
            or (b) the accused is charged with an offense against
            the spouse or partner, a child of the accused or of the
            spouse or partner, or a child to whom the accused or
            the spouse or partner stands in the place of a parent, or
            (c) such spouse or partner is the complainant.

            [ N.J.S.A. 2A:84A-17(2); N.J.R.E. 501(2) (emphasis
            added).]

      Referencing statutes enacted well after 1960, the State asserts that "the

Legislature declined to define 'child' in the spousal privilege, despite clearly

recognizing their ability to do so in other statutes."     See  N.J.S.A. 2C:24-

4(b)(1) (enacted in 1978 and defining "child" as "any person under [eighteen]

years of age" for the crime of endangering the welfare of a child);  N.J.S.A.

2C:13-6(b) (enacted in 1993 and defining "child" as "a person less than

[eighteen] years old" for the crime of luring or enticing a child). The 1960

version of the endangering the welfare of a child statute does not define a

"child."  N.J.S.A. 2A:96-2 (repealed by L. 1978, c. 95, § 2C:98-2, eff. Sept. 1,

1979). No version of the luring and enticing children statute existed in 1960.

A criminal statute related to the hiring, employing or use of a child in

connection with the sale or transport of illegal drugs, in effect from 1952 to

1986, referred to "any child under the age of eighteen years."  N.J.S.A. 2A:96-

5 (repealed by L. 1987, c. 106, § 25, eff. July 9, 1987). The legislative history

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is not helpful in determining the meaning of "child" in the spousal privilege

exception.

      Our Supreme Court has stated that "the spousal privilege is intended to

protect the sanctity and tranquility of marriage from the negative consequences

which are 'presumed to attend the compelled condemnation of one spouse by

another in a criminal proceeding.'" State v. Mauti,  208 N.J. 519, 534 (2012)

(quoting State v. Baluch,  341 N.J. Super. 141, 171 (App. Div. 2001)). An

exception to the privilege is when the accused is charged with an offense

against "a child of the accused or of the spouse or partner, or a child to whom

the accused or the spouse or partner stands in the place of a parent."  N.J.S.A.

2A:84A-17(2)(b). The purpose of the exception is to protect children, even at

the expense of marital harmony, by requiring parents to testify truthfully when

called by the State in those instances where a dependent child is the victim.

See United States v. Allery,  526 F.2d 1362, 1366 (8th Cir. 1975) ("[A] serious

crime against a child is an offense against that family harmony and to society

as well. . . . [W]e note the necessity for parental testimony in prosecutions for

child abuse.").

      "A statute's plain language must be construed 'in context with related

provisions so as to give sense to the legislation as a whole.'"         State v.


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Rodriguez,  238 N.J. 105, 113 (2019) (quoting Spade v. Select Comfort Corp.,

 232 N.J. 504, 515 (2018)). We need not look beyond the plain wording of this

statute. The meaning of "child" becomes clear from the phrase that follows in

the same section. The second phrase includes: "a child to whom the accused

or the spouse or partner stands in the place of a parent."  N.J.S.A. 2A:84A-

17(2)(b). Someone stands in the place of a parent to an unemancipated child,

not an emancipated adult.

      "Parents have a legal duty to support their children from birth until

emancipation, 'which presumptively occurs when the child reaches the age of

majority.'" D.W. v. R.W.,  212 N.J. 232, 246 (2012) (quoting R.A.C. v. P.J.S.,

Jr.,  192 N.J. 81, 94 (2007)). Majority occurs at age eighteen.  N.J.S.A. 9:17B-

3. A child becomes emancipated "when the fundamental dependent

relationship between parent and child is concluded, the parent relinquishes the

right to custody and is relieved of the burden of support, and the child is no

longer entitled to support." Filippone v. Lee,  304 N.J. Super. 301, 308 (App.

Div. 1997). While there is a rebuttable presumption that the child reaches

emancipation at age eighteen, the "essential inquiry is whether the child has

moved 'beyond the sphere of influence and responsibility exercised by a parent




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and obtains an independent status of his or her own.'" Ibid. (quoting Bishop v.

Bishop,  287 N.J. Super. 593, 598 (Ch. Div. 1995)).

      The meaning of child must have the same meaning in both portions of

the same section of the same statute. We thus hold that "child" in the spousal

privilege exception, codified in  N.J.S.A. 2A:84A-17(2)(b) and set forth in

N.J.R.E. 501(2)(b), means an unemancipated child.

      Affirmed.




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