STATE OF NEW JERSEY, IN THE INTEREST OF S.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2961-04T4

STATE OF NEW JERSEY,

IN THE INTEREST OF S.C.,

Juvenile-Appellant

___________________________________________________________

 

Submitted December 21, 2005 - Decided February 16, 2006

Before Judges Conley, Winkelstein and Lihotz.

On appeal from New Jersey Superior Court, Chancery Division, Family Part, Essex County, FJ-07-6296-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

S.C. appeals from an adjudication of delinquency. Initially, she was charged with conduct that if committed by an adult would constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (counts one and two); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (counts three and four); third-degree terroristic threats, contrary to the provisions of N.J.S.A. 2C:12-3 (counts five and eight); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count six); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b (count seven).

Prior to trial, S.C. filed a motion to dismiss the complaint, asserting impermissible vagueness, R. 3:10-2, and simultaneously filed a motion for a bill of particulars, R. 3:7-5. After a hearing, the motions were denied. The initial complaint, which had stated the alleged delinquent behavior took place in "October 2003," was amended to recite that the date and time of the offenses charged occurred "on or about mid-October, October 16, 2003 to December 22, 2003." The amended complaint added the offenses of third-degree promoting obscene material, contrary to N.J.S.A. 2C:34-3b(2) (counts nine and ten). Additionally, count four was amended to allege first-degree sexual assault, contrary to the provisions of N.J.S.A. 2C:14-2a(1).

The juvenile was adjudicated delinquent on all counts of the amended complaint except counts five and eight for terroristic threats. These charges were dismissed. The trial court imposed a four-year term in the custody of the Juvenile Justice Commission at the State Training School for Girls.

In her appeal, S.C. asserts the following:

POINT ONE

THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT AS IMPERISSABLY [sic] VAGUE.

POINT TWO

DEFENDANT'S CONVICTION SHOULD BE VACATED AND THE MATTER REMANDED FOR A TAINT HEARING AS THE VIDEOTAPED INTERVIEW OF THE ALLEGED VICTIM'S WAS SO SUGGESTIVE AS TO HAVE THE CAPACITY TO DISTORT THE CHILDREN'S RECOLLECTIONS OF THE EVENTS.

POINT THREE

THE TRIAL COURT ERRED IN ADMITTING THE VIDEO TAPED STATEMENT OF THE TWO ALLEGED VICTIMS INTO EVIDENCE.

A. Defendant's Conviction Should be Vacated and the Matter Remanded so That a new Trial may be Conducted with the Instruction that the Videotape be Excluded from Evidence.

B. Alternatively, the Matter Should be Remanded so That a Rule 104(a) Hearing may be Conducted to Determine Whether There is a Probability that the Statement is Trustworthy.

POINT FOUR

THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT AS FINDINGS REGARDING AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE AND THE PUNISHMENT WAS CREATED FOR THE CRIMINAL, RATHER THAN THE CRIME.

We affirm defendant's adjudication of delinquency, but remand for resentencing because the trial court failed to properly comply with N.J.S.A. 2A:4A-44a(1) and (2).

The following evidence was presented during the multi-day bench trial in the Family Part. The victims of the alleged sexual assault, sisters N.A.C., age six, and N.K.C., age five, resided with their parents in Newark. Also living in the home in the latter part of 2003 was the juvenile, S.C., then age seventeen. In May 2004, Ms. J. and her husband, the victims' parents, awoke at 9:32 p.m. due to the hysterical cries of their daughters. Realizing the children needed to tell her something, Ms. J. separated the girls, taking N.K.C. into the bathroom, allowing her husband to stay with the N.A.C. in the living room. N.K.C. explained to her mother, she and her sister were forced to engage in oral sexual activity and watch pornographic videos with S.C. Ms. J. then took her older daughter, N.A.C. aside. After being told what her sister had revealed, N.A.C. reiterated the acts of sexual contact with S.C., which concurred with her sister's account. She was hysterically crying, "she is gonna kill us." Ms. J. and the children went to the police and then the hospital.
A Child Advocacy Center representative of the Essex County Prosecutor's Office interviewed the children. The video tapes of the interviews were admitted into evidence over S.C.'s objection. N.A.C. described the incidents of sexual contact with S.C. explaining they "happened a lot." She described two specific instances when S.C. touched N.A.C.'s vaginal area. She testified as to these events during the trial, but in less detail. She stated prior to testifying she viewed her police interview video "three times."

During her taped interview, N.K.C. stated S.C. touched and kissed her mouth and vaginal area. She stated she had to touch S.C. in her vaginal area and lick her breasts, once "around Christmas." She recalled S.C. showed her a "nasty movie." She too, testified at trial, essentially relating these facts.

S.C. testified asserting she never engaged in any sexual acts with the children. She admitted she watched a pornographic movie, which was given to her by Ms. J's husband, but turned it off when the girls came in her room. S.C. suggested the children contrived the story.

At the close of the evidence, the court dismissed the counts alleging terroristic threats, as there was no proof of a "threat to kill" made by S.C. The trial court adjudicated delinquency on all other counts.

We first address whether the trial court erred in denying defendant's motion to dismiss the complaint. Defendant contends that by amending the complaint to expand the timeframe of the alleged offenses from "October 2003" to the broader period of "October 16, 2003 to December 22, 2003," the State's already vague complaint, was made vaguer. Further, she asserts the State failed to develop specific information regarding the alleged acts of sexual abuse contrary to its imposed obligation. State in Interest of K.A.W., 104 N.J. 112 (1986).

Both by statute, N.J.S.A. 2A:4A-30(a)(3), and by Rule 5:20-1(a)(3), a juvenile complaint must contain the date, time, place and nature of the acts or conduct alleged as the basis of the complaint. The issue of "whether a complaint in a juvenile delinquency action, charging sexual assault on a victim younger than thirteen years of age, must specify an exact date of occurrence" has been addressed by our Supreme Court in K.A.W.:

For constitutional due process purposes, the adequacy of a charge set forth in a juvenile delinquency complaint, as in a criminal indictment, turns on whether the notice contained in the complaint sufficiently apprises the accused of the offense with which he is charged to enable him to prepare a defense.

[State in Interest of K.A.W., supra, 104 N.J. at 113-14.]

The trial court in rendering its decision must make "an especially diligent scrutiny of the facts of the incident" aiming "to narrow the time frame of the occurrence as complained of -- if not to the extent of an exact date or dates, then possibly in respect of seasons of the year. . . ." State in Interest of K.A.W., supra, 104 N.J. at 122-23.

The Court listed factors to guide the trial court which include, but are not limited to:

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 . . . the age and intelligence of the victim, the extent and thoroughness of the prosecutor's investigative efforts to narrow the time frame of the alleged offense, and whether there was a continuous course of conduct.

[Id. at 122.]

After carefully reviewing the record, we affirm the denial of defendant's motions substantially for the reasons articulated by the trial judge in his oral opinion rendered September 1, 2004. The findings of the judge are based upon sufficient credible evidence contained in the record which could reasonably have been reached based upon that evidence. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Appellate courts will not disturb the discretionary findings of a trial court which are entitled to great deference unless they are so wholly insupportable as to result in a denial of justice. Locurto, supra, 157 N.J. at 474; see also Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Here, given the circumstances, the timeframe stated in the amended complaint gave adequate notice to S.C., sufficiently apprising her of the offense with which she was charged, to enable her to prepare her defense.

Defendant's next challenge relates to the interview of the victims. Defendant asserts the interview was "so suggestive" it distorted the victims' recollection of events. Defendant further argues the neutrality of the interview was undermined by the comments of Detective Arroyo, which led to untrustworthy testimony. Finally, S.C. contends, the trial court erred in admitting the video tapes into evidence.

Specifically, defendant maintains Arroyo: gave positive reinforcement while speaking to the children such as, "You are the best" or "You're so cute."; asked leading questions when questioning N.K.C., including, "[S.C.] touched you, didn't she?"; and made a statement vilifying the juvenile: "You did nothing wrong. [S.C.] did a bad thing." Finally, defendant challenges N.A.C.'s use of the word "rape" at one point when describing the actions of S.C., as it must have been something she was told.

The trial judge conducted a review required by N.J.R.E. 104(a) to determine the admissibility of the taped interviews of the victims under N.J.R.E. 803(c)(27). The trial court found "the surrounding circumstances were not overly suggestive" and allowed the tapes in evidence.

It is undisputed that the "'investigative interview' is a crucial, perhaps determinative, moment in a child-sex-abuse case." State v. Michaels, 136 N.J. 299, 309 (1994) (citations omitted). "[T]he use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 312.
We have reviewed the video tapes of the interrogations conducted in this case. Although we find the interview contained some reaffirmation of the children's responses, these occurred for the most part when responding to body-part identification or when N.A.C. translated a Spanish word into English. At the end of N.A.C.'s interview she was told she "did nothing wrong" and S.C. "did a bad thing." This parting comment, however, could not have tainted the prior inquiry. The use of some leading questions also occurred; but again, the context was either innocuous or in one instance, occurred immediately after a disclosure by N.K.C. that S.C. had touched her and Arroyo asked, "[S.C.] touched you?"

The results of our review concur with that of the trial court, concluding the undertaken interviews were not so suggestive to create a substantial risk that the statements and testimony elicited, lacked sufficient reliability to justify their admission at trial. Michaels, supra, 136 N.J. at 315-16. In the context of a bench trial, the factual findings of the trial judge, his assessments of credibility, and the judge's discretionary decisions are entitled to great deference. Locurto, supra, 157 N.J. at 474; Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994). Any deviation from the most preferred interviewing protocols was harmless and was mitigated further by the fact that each of the victims testified at trial. R. 2:10-2.

Finally, we turn to defendant's sentence. Appellate courts "are expected to exercise a vigorous and close review for abuses of discretion by the trial courts," State v. Jarbath, 114 N.J. 394, 401 (1989), and are "bound to affirm a sentence, even if [they] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). In this matter the trial court failed to state the specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2A:4A-44a(1) and (2), balance them, state how much weight was afforded each factor and explain how the sentence was determined, so that we as a reviewing court have an adequate record to determine on appeal, whether those factors were based upon competent credible evidence in the record. State v. Roth, 95 N.J. 334, 364-365 (1984); see also State v. Kruse, 105 N.J. 354 (1987).

We affirm defendant's adjudication of delinquency and remand for resentencing. We do not retain jurisdiction.

 

 
 

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A-2961-04T4

RECORD IMPOUNDED

February 16, 2006