STATE OF NEW JERSEY v. R.J.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4564-03T44564-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.C.,

Defendant-Appellant.

______________________________________

 

Submitted October 18, 2006 - Decided December 7, 2006

Before Judges Parker, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-05-0878.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from the convictions and sentences that resulted from an indictment that charged him with the commission of certain sexual offenses upon S.E. and W.E., two daughters of his live-in companion, M.D. For the reasons that follow, we reverse the convictions and remand for a new trial.

I.

R.J.C. was charged in an Atlantic County indictment with aggravated sexual assault (S.E.), N.J.S.A. 2C:14-2a (count one); aggravated criminal sexual contact (S.E.), N.J.S.A. 2C:14-3a (count two); endangering the welfare of a child (S.E.), N.J.S.A. 2C:24-4 (count three); aggravated sexual assault (W.E.), N.J.S.A. 2C:14-2a (count four); sexual assault (W.E.), N.J.S.A. 2C:14-2b (count five); and endangering the welfare of a child (W.E.), N.J.S.A. 2C:24-4 (count six). Defendant's first trial resulted in a mistrial and defendant was re-tried.

At the time of the alleged offenses, defendant was living with M.D. in a house in Pleasantville with his son P.E. and four of M.D.'s children, including W.E. and S.E. Defendant was employed at the time at a casino in Atlantic City, working from about 4:00 a.m. to 12:00 p.m. M.D. also worked at a casino. Her hours were about 3:30 p.m. to 11:30 p.m. Defendant was the only adult at home when M.D. was working. He was responsible for setting the rules in the house and dealing with issues of discipline that arose with the children.

W.E. testified that she moved into the home with her mother and defendant in the summer of 1996, when she was nine years old. Previously, she and M.D.'s other children lived with their paternal grandmother. Initially, W.E. slept with S.E. in the family room but at some point, she began sleeping with M.D. and defendant in a bed in the master bedroom. W.E. got used to sleeping there. She would watch television with defendant in the master bedroom. W.E. said that defendant was like a father to her and it was fun to be with him and watch television.

However, according to W.E., there came a point when "something happened" in bed that she did not like. W.E. said that at times she would fall asleep and wake up to find defendant "caressing" her vagina or trying to put his penis into her vagina. W.E. claimed that defendant vaginally penetrated her using his penis and his finger. W.E. also said that at times she woke up when defendant was performing oral sex upon her. W.E. asserted that defendant had engaged in these actions about fifty times during the course of a year. Defendant ceased these actions when W.E. stopped sleeping in the master bedroom.

W.E. did not tell anyone about defendant's conduct because she was afraid to tell her mother and because it was embarrassing. W.E. said that at one point, during an argument, she told defendant that she was going to tell her mother what had been going on. Defendant got upset and told W.E. and her sister that if she did that, everything would be in the newspapers.

W.E. testified that when she was in the sixth grade, she told a friend that she had been sexually assaulted but she did not disclose who had committed the assault. At some point, W.E. told her sister S.E. When she was in the seventh grade, W.E. told a friend that defendant had raped her. Subsequently, the allegation was reported to the police. W.E. said that thereafter, defendant was not allowed to come to the house, but one day he visited and apologized to W.E. and S.E. for "hurting" them.

S.E. testified as well. She also had lived with her paternal grandmother but moved back with M.D. after she completed the fifth grade. S.E. stated that, when she was about thirteen years old, defendant began to make comments about her breasts and buttocks. He said that she had "big breasts" and "no butt." According to S.E., defendant began to "grab" and "touch" her breasts and buttocks when she was walking by or just sitting down. S.E. testified that she had sexual intercourse with defendant on two occasions.

S.E. could not recall the first time this had occurred. However, S.E recounted that she had been asking for a pager because her older sister, defendant's son, and her friends had pagers. S.E. said that defendant called her to the master bedroom. He was sitting on the bed. Defendant told S.E. that if S.E. would let him have sexual intercourse with her, he would get her the pager. S.E. told defendant that she did not want the pager. Defendant then pulled down her pants and her panties, pushed her on the bed and "stuck his penis" in her vagina. Afterwards, S.E. went to the store with defendant and he purchased the pager while she remained in the car.

S.E. testified that the other time defendant had sexual intercourse with her in the master bedroom. S.E. said that she had been lying down on the bed watching television when defendant came into the room, got behind her, pulled down his pants, moved her clothes to the side, and vaginally penetrated her with his penis.

S.E. stated that defendant also had required her to perform other sexual acts. She had to perform oral sex upon defendant. S.E. testified that defendant "said that I did it to another boy and I should do it to him." S.E. additionally said that on more than one occasion, defendant had performed oral sex upon her while she masturbated his penis with her hand.

S.E. stated that, on one occasion, she went with defendant to a mall and saw an outfit that she liked. Defendant said that if she allowed him to perform oral sex upon her, he would buy the outfit for her. S.E. said that she did not want to do it. Defendant told her that if she refused, or told anyone about it, she would "lose" her mother and have to move back with her grandmother. S.E. said that defendant performed oral sex upon her in the van and then made her masturbate him to ejaculation. Afterwards, defendant purchased the outfit.

S.E. said that another time defendant made her take her clothes off and he took pictures of her lying on the bed in the master bedroom with her legs up. S.E. said that she was crying at the time. She claimed that the photos were later cut up. S.E. also said that at one time, defendant showed her pictures of his penis and "things that [he did] with other females." S.E. returned the pictures to defendant and told him that she did not want to see them. S.E. also said that another time she complained about a lump in her breast. Defendant touched her breast to feel for the lump.

S.E. testified that, in the period when defendant was engaging in these various sexual acts, she did not tell her mother. She did not tell anyone until she was a freshman in high school. S.E. said that she told her cousin about defendant's actions. S.E. later told a counselor at the school, who advised her to tell her mother. S.E. finally informed her mother sometime in her freshman year but, according to S.E., nothing happened. The counselor then called the Division of Youth and Family Services.

Defendant testified on his own behalf. He denied that he ever touched W.E. or S.E. inappropriately. He denied that he engaged in any sexual acts with W.E. or S.E. Defendant stated that he had primary responsibility for disciplining the children. He said that S.E. was punished more often than the other children because she seemed "to get in more trouble than anyone else." Defendant admitted that, on one occasion, he videotaped S.E. disrobing but said that he merely intended to capture her getting ready for a school dance and he was shocked when she took off some of her clothes. He conceded, however, that he had continued taping S.E. and commented on her bra size. Defendant also denied photographing either girl in the nude or having a conversation with W.E. about keeping her allegations to herself.

Defendant was found guilty on all charges. The judge denied defendant's motion for a judgment of acquittal or a new trial. Defendant was sentenced to: seventeen years imprisonment on count one, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2; five years on count two, concurrent with the sentence imposed on count one; seven years on count three, concurrent with the sentences on counts one and two; seventeen years on count four, consecutive to the sentences on counts one, two and three; five years on count five, concurrent with the sentence on count four; and seven years on count six, concurrent to the sentences on counts four and five. The judge imposed various fines and penalties. In addition, defendant was declared to be subject to Megan's Law, N.J.S.A. 2C:7-1 to -11; placed under community supervision for life pursuant to N.J.S.A. 2C:43-6.4; and ordered to provide a DNA sample pursuant to N.J.S.A. 53:1-20.20. This appeal followed.

Defendant raises the following points for our consideration:

I. THE DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE WAS VIOLATED BY THE TRIAL COURT'S EXCLUSION OF EVIDENCE OF THE PRESENCE OF GENITAL WARTS IN A PURPORTED VICTIM AND THEIR ABSENCE IN THE DEFENDANT. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. I, par. 10.

II. THE TRIAL COURT, WHILE APPROPRIATELY EXCUSING TWO SITTING JURORS IN THE CASE, FAILED TO SUFFICIENTLY INQUIRE WHETHER THE REMAINING JURORS WERE INFLUENCED BY THE EXCUSED JURORS, NECESSITATING REVERSAL. U.S. Const., Amend. VI, N.J. Const. (1947), Art. I, par. 9. (Partially Raised Below).

III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY FAILING TO CONTEMPORANEOUSLY CAUTION THE JURY AS TO THE LIMITED PERMISSIBLE USE OF "FRESH COMPLAINT" EVIDENCE, NECESSITATING REVERSAL. (Not Raised Below).

IV. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

A. A Natale Remand is Necessary.

B. The Sentence Imposed Was Excessive.

C. The Court Improperly Imposed Consecutive Sentences.

II.

Defendant argues that the judge erred by excluding evidence that S.E. had a venereal or genital wart caused by a viral infection but that defendant and his sexual partner did not exhibit any visible manifestation of such an infection.

In this case, the State initially intended to present testimony at trial from Dr. Debra Lowen (Lowen), a board-certified pediatrician, who had examined S.E. on March 21, 2000. The State intended to elicit testimony from Lowen that she found evidence of vaginal trauma. The State filed a motion in limine to bar defendant from eliciting testimony from Lowen that, during her examination of S.E., she found a venereal wart in the genital tissues just in front of the hymen which was the result of a viral infection. The State further sought to bar defendant from presenting evidence that neither he nor his sexual partner had any visible manifestation of a similar infection. The State argued that the evidence was not relevant to any issue in the case. The State also argued that even if the evidence was relevant, it should be excluded under N.J.R.E. 403 because it would unduly consume trial time and confuse the jury.

The judge conducted a hearing pursuant to N.J.R.E. 104 to consider whether to admit the evidence. The State stipulated that S.E. had consensual sexual intercourse with someone other than defendant sometime prior to Lowen's examination on March 21, 2000. Lowen testified that venereal or genital warts are caused by human papillomavirus (HPV). They can be found anywhere in the genital tissues or around the anal tissues. Lowen stated that HPV is commonly transmitted by direct contact with an area of the body that is infected with HPV. The infection can be asymptomatic; however, if a genital wart develops, it may not be visible. Moreover, even if a genital wart or HPV is present, HPV will not necessarily be transmitted to a sexual partner. Lowen said that there is no specific time frame between exposure to the virus and appearance of a genital wart.

Lowen further testified that when an individual is infected with HPV, the use of a condom during sexual intercourse will not provide absolute protection against transmission of the virus because the condom will only cover the penis. The virus also may be in other areas of the body and could be transmitted by contact. In addition, the virus can be transmitted via seminal fluid. In females, HPV may be detected by a PAP smear, but in males DNA testing would be the only accurate means to detect the virus and such testing is not common. Lowen stated that genital warts can be treated but at present, there is no treatment for the virus. She said that the body will clear itself of the virus on its own but this process may take "weeks to months to years."

Lowen was asked whether she had an opinion, to a reasonable degree of medical certainty, as to whether the absence of a genital wart in a male would exclude that individual as the person who transmitted the virus to a particular female. Lowen said that the absence of a wart would not exclude the male as the source of the virus. Lowen was asked whether, to a reasonable degree of medical certainty, the fact that the same man's sexual partner or partners did not have visible genital warts would exclude that man as the person who could have transmitted the virus to another sexual partner who was infected with the virus.

On cross-examination, Lowen conceded that genital HPVs are highly contagious. She agreed that these HPVs are highly contagious when there is penal/vaginal intercourse. Lowen agreed that the virus can be spread by oral contact with the vagina, fondling in the genital areas, and "naked grinding without the necessity of actual penetration." The virus could also be transmitted if an individual engaged in masturbation of the penis and the seminal fluid were to touch an area of another person's body that is susceptible to being a host to the virus.

Lowen stated that during the examination, S.E. told her that the first episode of sexual intercourse with defendant had taken place two or three years prior to the examination. The second episode of sexual intercourse was close in time to the first. S.E. informed Lowen that she had other sexual contacts with defendant, the most recent of which was a manual touching that had occurred about a month before the examination. S.E. also told Lowen that she had intercourse with another individual about two years before the exam and that male had used a condom. S.E. related that she had other episodes of consensual sexual intercourse during which condoms were used.

Lowen conceded that, if S.E. had been infected with HPV before the acts of intercourse attributed to defendant, then theoretically she could have infected defendant. Lowen further testified:

Q. Assume two acts of sexual - unprotected sexual intercourse during a time period of which we cannot be positive, but we know is from either one-year-and-three-quarters before her meeting with you, to as far back as maybe three years.

A. Okay.

Q. Assume that prior to the episodes of sexual intercourse, there are repeated and regular episodes of -- of manual touching of the vagina by [defendant]. Assume that during this period of time - and I - a - three years prior, without any specific time reference, that there were a number of masturbations of [defendant] to ejaculation, unprotected. Assume further that after the episodes of sexual intercourse, there [were] frequent acts of cunnilingus, unprotected obviously, right, on the - of the - unprotected cunnilingus. And assume that this - the sexual activity took place on a - with some regularity up to and including the three weeks or a month before your meeting, the last act of - activity being the manual touching of the vagina by [defendant] and assume that penetration was also - digital penetration also occurred on that occasion and assume further, first, that [defendant] was infected with HPV during this period of time. Would you agree with me that there's a substantial likelihood that he would have infected [S.E.].

A. Yes.

Q. Assume everything that you just assumed, except for one thing that I'm going to change; assume that during that period of time [S.E.] was the person originally infected and [defendant] had no infection. Would you agree with me that there would be a substantial likelihood that [defendant] would've been infected by [S.E.]?

A. Yes.

Q. Now, I want you to now assume that . . . during this period of time, [defendant] was infected and assume further that during this period of time, he engaged in regular and frequent unprotected sexual intercourse with his partner, would you agree with me that there was a substantial probability that his partner would become infected?

A. With HPV, yes.

Lowen also was asked if S.E. had a genital wart, and defendant and his partner did not have visible symptoms of HPV, would these facts be inconsistent with the proposition that defendant had sexual relations with S.E. Lowen said it was not inconsistent. She said that an infection could not be ruled out merely because defendant did not have visible genital warts.

The trial judge rendered a written opinion dated April 25, 2001. The judge found that the proffered evidence was not relevant because defendant could not be excluded as a donor of HPV merely because he had no visible genital warts. The judge found that the following inferences could be drawn from the evidence: 1) defendant is a carrier of HPV, but is asymptomatic; 2) defendant was a carrier of the virus at the times specified in the indictment but he was no longer infected at the time of his examination, or he was infected and asymptomatic; 3) defendant's wife is infected with HPV and not symptomatic and the virus was undetected at the times of her periodic examinations; 4) defendant's wife was at one time infected with HPV but the virus was undetected and she is no longer infected; 5) S.E. contracted HPV from another individual with whom she had sexual contact; 6) S.E. contracted HPV as a result of undisclosed sexual contact with another person; 7) S.E. contracted HPV from her boyfriend but did not transmit it to defendant; 8) S.E. contracted HPV from her boyfriend and transmitted it to defendant who is without symptoms; 9) S.E. contracted HPV from her boyfriend and transmitted it to defendant whose infection cleared up before his examination; and 10) defendant transmitted HPV to S.E. but was at the time of his examination without symptoms. The judge concluded that in light of the number of possible inferences that the trier of fact could legitimately draw from the facts presented, evidence of S.E.'s HPV infection, and the lack of any visible symptoms of HPV infection in defendant or his wife, were not facts of consequence.

We disagree. As a general matter, a trial court is afforded "considerable latitude" in determining whether to admit evidence. State v. Feaster, 156 N.J. 1, 82 (1998). An evidentiary ruling of the trial court will not be disturbed on appeal unless the ruling "was so wide of the mark" that it resulted in a "manifest denial of justice." State v. Carter, 91 N.J. 86, 106 (1982). Our review of the record leads us to the conclusion that the judge erred in finding that the evidence at issue was not relevant. We are convinced that the judge's ruling was "wide of the mark" and resulted in a "manifest denial of justice."

Under N.J.R.E. 402, all relevant evidence is admissible, except as otherwise provided in the rules of evidence or by law. "Relevant evidence" is defined in N.J.R.E. 401 as evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Evidence is relevant when it "renders the desired inference more probable than it would be without the evidence." Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State v. Davis, 96 N.J. Super. 611, 619 (App. Div. 1984)). Evidence is relevant when it supports the existence of a specific fact, "even obliquely." Id. at 34.

Contrary to the judge's finding in this case, the proffered evidence had a "tendency in reason" to prove a "fact of consequence." N.J.R.E. 401. In his opinion, the trial judge enumerated certain inferences that a jury could draw from the proffered evidence. However, the jurors also could infer that if defendant and his sexual partner did not exhibit any visible manifestation of HPV, defendant may not have engaged in the sexual acts as alleged by S.E. Because the exclusion of the evidence precluded the jury from drawing this permissible inference, and because such an inference could have raised reasonable doubt as to whether defendant committed the charged offenses, the judge's ruling resulted in a manifest denial of justice.

We also are convinced that the trial judge erred in excluding the proffered evidence pursuant to N.J.R.E. 403. The judge stated in his opinion that the medical knowledge concerning the carrying and transmission of HPV was elusive. The judge wrote, "The vagaries of contracting, transmitting, and diagnosing HPV are numerous and, in this case, undetermined." The judge stated that the evidence would merely allow speculation on the part of the jury. The judge found that the evidence would be prejudicial to the alleged victim because it would allow the jurors to infer sexual promiscuity on her part, embarrass her, and intrude upon her privacy. The judge concluded that the probative value of the evidence was minimal and it was outweighed by the confusion of the issues, consumption of trial time, and the intrusion upon the alleged victim's privacy.

Again, we disagree. Contrary to the judge's findings, the proffered evidence has more than minimal probative value on the issue of defendant's guilt or innocence. The case against defendant rests almost entirely upon the testimony of the two alleged victims. The evidence at issue could have a significant bearing upon the jury's assessment of the defendant's assertion that he did not engage in any sexual acts with either S.E. or W.E.

Furthermore, admission of the evidence is not likely to confuse the issues, mislead the jury, create delay or waste trial time. Lowen's explanation of the virus, the means of its transmission, and its symptomology was clear. Jurors of average intelligence can assess whether or not S.E.'s HPV infection, and the lack of any visible manifestation of the virus by defendant and his sexual partner, support his claim of innocence. In addition, admitting this evidence will not unduly delay the proceedings. The N.J.R.E. 104 hearing on this issue did not consume an inordinate amount of time. Furthermore, allowing defendant to present evidence that may result in his exoneration would not be a waste of time.

We additionally are convinced that in these circumstances, evidence of S.E.'s prior sexual activity would be admissible under the Rape Shield Law, N.J.S.A. 2C:14-7. The statute provides in pertinent part that, "Evidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." N.J.S.A. 2C:14-7c.

The evidence of S.E.'s sexual activity with persons other than defendant here relates to the source of S.E.'s HPV infection. The evidence has a tendency in reason to support defendant's claim that he had no sexual contact with S.E. The probative value of the evidence substantially outweighs the probability that its admission will create undue prejudice, confuse the issues, or result in an unwarranted invasion of the privacy of the alleged victim. N.J.S.A. 2C:14-7a.

Moreover, the Rape Shield Law cannot be read to preclude the admission of evidence that is admissible under the Confrontation and Compulsory Process Clauses of the Federal and State Constitutions. State v. Garron, 177 N.J. 147, 172 (2003) (citing State v. Budis, 125 N.J. 519, 532 (1991)). Defendant has a constitutional right to present evidence that is relevant to his defense when, as in this case, its probative value outweighs its prejudicial effect. Ibid.

We therefore conclude that the judge erred in barring defendant from presenting evidence concerning S.E.'s infection with HPV, and evidence that neither defendant nor his wife had any visible manifestation of an HPV infection. Because the exclusion of this evidence resulted in a manifest denial of justice, we reverse defendant's convictions and remand for a new trial.

In view of our decision, the other issues raised by defendant are moot.

Reversed and remanded for a new trial.

 

(continued)

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A-4564-03T4

RECORD IMPOUNDED

December 7, 2006