STATE OF NEW JERSEY v. I.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0816-03T30816-03T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

I.R.,

Defendant-Appellant.

___________________________________________________

 

Submitted November 28, 2005 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-00751.

Garces & Grabler, attorneys for appellant (Christopher G. Hewitt and John D. Caruso, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, Legal Analyst, on the brief).

PER CURIAM

Sixteen-year old Y.S. claimed she was sexually assaulted by defendant, her father. As a result, defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(a) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b) (count three); fourth-degree child abuse, N.J.S.A. 9:6-3 and 9:6-8.21 (count four); fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count five); fourth-degree child abuse/cruelty, N.J.S.A. 9:6-1 and 9:6-3 (count six); and fourth-degree child abuse/neglect, N.J.S.A. 9:6-1, 9:6-3 and 9:6-8.21 (count seven).

The judge conducted an evidentiary hearing prior to trial and determined that certain fresh complaint and prior bad acts evidence were admissible. Following this determination, the trial was commenced, and, at the conclusion of the State's case, the judge dismissed counts four, six and seven. Defendant was found guilty of the remaining charges, and sentenced to a sixteen-year term of imprisonment on count one, an eight-year term of imprisonment on count two, and a fifteen-month term of imprisonment on count five. Count three was merged into count two for sentencing purposes, and all the terms were ordered to run concurrently.

Defendant appealed, raising the following arguments for our consideration:

I. THE JURY'S VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

II. THE LOWER COURT ERRONEOUSLY ADMITTED EVIDENCE HIGHLY PREJUDICIAL TO THE DEFENDANT.

A. THE TRIAL COURT ERRED IN ADMITTED "FRESH COMPLAINT" TESTIMONY WHERE THE ALLEGED FRESH COMPLAINT DID NOT SATISFY ALL CRITERIA FOR ADMISSIBILITY.

B. EVIDENCE OF THE DEFENDANT'S ALLEGED PRIOR BAD ACTS WAS IMPROPERLY ADMITTED.

III. THE CUMULATIVE IMPACT OF ERRORS SET FORTH IN POINT II LED TO A MANIFESTLY UNJUST TRIAL PROCESS FOR THE DEFENDANT.

We reject all these arguments and affirm.

In Point I, defendant argues that the jury's verdict was against the weight of the evidence. R. 2:10-1 states that "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Since defendant did not move for a new trial, we reject his Point I without reaching its merits. State v. McNair, 60 N.J. 8, 9 (1972); State v. Brown, 325 N.J. Super. 447, 456-57 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).

In Point II A, defendant contends that the trial judge incorrectly permitted the State to elicit evidence that Y.S. made two fresh complaints, one to her boyfriend at the time and the other to her mother.

The fresh complaint doctrine arose from the expectation that women would alert others about violent assaults. As the Court observed in State v. Hill, 121 N.J. 150, 157 (1990), it was historically assumed that "[v]ictims of violent crimes were expected to cry out immediately and alert their neighbors that they had been violently assaulted." As a result, juries were traditionally "permitted to draw a negative inference from the lack of a fresh complaint." Id. at 159. After considering these historical underpinnings, the Court concluded that the fresh complaint doctrine's modern purpose is limited, that it is intended to "negate the inference that the victim was not sexually assaulted because of her silence," and that such evidence should not constitute substantive evidence of the alleged crime. Id. at 163-66.

In balancing the competing interests subsumed within the fresh complaint doctrine, our Supreme Court has determined that there are essentially three elements necessary to categorize a statement as a fresh complaint: (1) the statement must be made to someone the victim would ordinarily turn to for sympathy, protection and advice; (2) the statement must have been made within a reasonable time after the incident; and (3) the statement must have been spontaneous and voluntary. State v. Hill, supra, 121 N.J. at 163; State v. Balles, 47 N.J. 331, 338 (1966), cert. denied sub nom., Balles v. New Jersey, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967).

There was sufficient evidence in the record to support the trial judge's determination that, in both instances, Y.S. communicated her complaint to persons she would have been expected to turn to for sympathy, protection and advice -- her mother and her boyfriend at the time. The evidence supported the judge's finding that Y.S.'s boyfriend fell within that category. And, even though her relationship with her mother was often strained, the trial judge found, after hearing testimony from Y.S., that there remained a "mother/daughter relationship." As a result, the judge held that the first prong was satisfied in both instances. We have no cause to second guess those determinations.

The second element of the test requires consideration of whether the complaints were made within a reasonable period of time. Here, Y.S. told her boyfriend of the sexual assault approximately one month after its occurrence. On the other hand, she only reported the incident to her mother in an indirect way and only after a delay of six months. After hearing the testimony of Y.S. during the pretrial hearing, the judge explained Y.S.'s delay in informing her mother and how she was only able to convey what had occurred by leaving her diary open to a description of the incident where it would be found by her mother:

The difficulty which [Y.S.] expressed [in her testimony] in telling her mother about what happened with her father somewhat explains the 6 month [delay].

[Y.S.] testified that she was not able to tell her mother what was wrong, although it was obvious[] something [was] amiss after she returned to her mother's house. And, in fact, she was still unable to tell her in person, some 6 months after leaving the diary on her mother's pillow.

[Y.S.] testified that she gave the diary to her mother because of all the emotions inside of her I think were her words, as she didn't know what to do. She said she felt scared, didn't know how to say it, didn't know what her mother would think.

In this regard, we have recognized that although "the length of the delay is a factor to be considered as relevant to the weight . . . given to the fresh complaint," the requirement that the complaint actually be "fresh" has not been rigidly adhered to. State v. Bethune, 232 N.J. Super. 532, 536 (App. Div. 1989), aff'd, 121 N.J. 137 (1990). Moreover, whether the complaint was timely, and whether there were circumstances that explained the delay, are questions to be resolved by the jury. Id. at 537. We are satisfied that the trial judge correctly applied this second prong in admitting the evidence. Indeed, we have concluded that longer delays did not preclude admission of fresh complaint evidence. See State v. L.P., 352 N.J. Super. 369, 383-84 (App. Div.) (one-year delay), certif. denied, 174 N.J. 546 (2002); State v. Hummel, 132 N.J. Super. 412, 423 (App. Div.) (three-year delay), certif. denied, 67 N.J. 102 (1975).

The third prong requires that the complaint not be the product of interrogation. State v. J.S., 222 N.J. Super. 247, 253 (App. Div.) (the complaint must not be "extracted by interrogation"), certif. denied, 111 N.J. 588 (1988). Such evidence may, however, be admitted even when resulting from questioning so long as the victim's statements were made "in response to general, non-coercive questions" and have "the necessary spontaneity and voluntariness to qualify as fresh complaints." State v. Hill, supra, 121 N.J. at 167. That is, only statements that are "procured by pointed, inquisitive, coercive interrogation . . . lack the degree of voluntariness necessary." Ibid. As the Court recognized in State v. Bethune, the line between general questioning and that which is coercive is fine, and the determination of which side of that line evidence falls rests in the discretion of the trial judge. 121 N.J. at 145. In decoding such evidence, the trial judge must consider factors such as "the age of the victim, the circumstances under which the interrogation took place, the victim's relationship with the interrogator . . . [and] the type of questions asked." State v. Hill, supra, 121 N.J. at 168.

In applying these standards, the judge recognized that Y.S.'s boyfriend had asked, without pressuring her, whether "something had happened to [her]" while she was living with defendant. Y.S. testified that she was not "forced to say what happened." Instead, she "wanted to say it, because it released a little bit of pressure." In applying the same standard to the testimony of Y.S.'s mother, the judge concluded that Y.S. stated that her mother did ask more than once whether anything happened while she was living with defendant. However, her mother's questions were not pointed or coercive, and Y.S. did not feel pressured.

For all these reasons, we conclude there was adequate evidence in the record to support the judge's determination that the evidence given by Y.S.'s mother and her boyfriend was admissible.

We conclude that the argument asserted by defendant in Point II B is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In Point III, defendant argues that the accumulation of trial errors rendered the verdict manifestly unjust and requires a reversal of the judgment of conviction. Since we have determined that no errors were committed, we reject this last contention.

 
Affirmed.

(continued)

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9

A-0816-03T3

RECORD IMPOUNDED

December 27, 2005