STATE OF NEW JERSEY v. NOEL ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6589-03T46589-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NOEL ANDERSON,

Defendant-Appellant.

_________________________________________________

 

Submitted April 25, 2006 - Decided July 13, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

I-00-12-1354.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel and on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Terry Bogorad, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Noel Anderson was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, as a lesser included offense within the second-degree endangering crime for which he was charged, upon evidence of his digital and penile penetration of the eight-year-old victim, T.F. Defendant was sentenced to twenty years in custody with a ten-year parole disqualifier on the first-degree charge, to a concurrent ten-year term with a five-year parole disqualifier on the second-degree charge, and to a concurrent five year term on the third-degree charge.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO A FIAR TRIAL AS A RESULT OF INADMISSIBLE AND PREJUDICIAL TESTIMONY ELICITED BY THE PROSECUTOR DURING REDIRECT EXAMINATION OF THE VICTIM'S MOTHER ALLEGING THE DEFENDANT HAD SEXUALLY ASSAULTED HER.

(Partially Raised Below.)

POINT II

THE TRIAL COURT ERRED BY IMPROPERLY RESTRICTING DEFENSE COUNSEL'S RIGHT TO CROSS-EXAMINE THE VICTIM'S MOTHER REGARDING RELEVANT MATTERS ADVERSELY IMPACTING UPON HER CREDIBILITY.

POINT III

THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTOR TO ELICIT TESTIMONY FROM THE VICTIM'S MOTHER THAT SHE BELIEVED THE VICTIM WAS CREDIBLE AND TELLING THE TRUTH.

POINT IV

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTION OCCURRING MORE THAN 10 YEARS PRIOR TO TRIAL WAS ADMISSIBLE TO ATTACK CREDIBILITY.

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VII

ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON THE REVIEW OF THE APPLICABLE . . . AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

We affirm defendant's conviction, vacate his sentence, and remand the matter for resentencing.

I.

The State produced evidence at trial that at the time of the sexual assaults, the victim, together with her sister, her brother and her mother, were living in the dining room of a cousin's residence, which had been converted into a bedroom. The three females shared the bed, while the boy slept in a crib. Approximately two nights a week, the family was joined by defendant, the father of all the children with the exception of the victim, who remained for the night. On two occasions, while the mother was showering, defendant sexually assaulted the victim while she lay on the bed, on one occasion digitally penetrating her vagina, and on the other, penetrating her vagina with his penis. A subsequent medical examination revealed evidence of sexual abuse.

II.

On appeal, defendant claims error in the elicitation by the prosecutor of evidence that the victim's mother had engaged in nonconsensual sex with defendant while the two adults and the child victim were lying in bed immediately after one of the assaults.

The record discloses that the conduct of the mother was introduced by the defense during her cross-examination, and it was established at that time that the mother and defendant had engaged in intercourse. It was only on redirect examination, after the conduct had been disclosed, that the mother stated in answer to the prosecutor's questions that the activity had been nonconsensual, and had been denominated as such by the mother in her statement to the police.

We find no error in the admission of the testimony. Because defendant's conduct as described by the mother was unlawful, in the ordinary course the testimony would have been inadmissible under N.J.R.E. 404(b). However, defense counsel opened the door to the testimony by asking the mother on cross-examination whether the sexual activity had occurred. A defendant cannot make use of admissible evidence to paint a partial picture, while seeking to preclude the prosecutor from completing the picture by use of evidence that would be otherwise inadmissible. State v. James, 144 N.J. 538, 554 (1996). That is what defendant sought to do here. Otherwise inadmissible evidence may be admitted to achieve completeness, so as "(1) to explain the initial, admissible statement; (2) to provide a context for the admissible statement; (3) to avoid any misleading of the trier of fact; or (4) to insure 'a fair and impartial understanding' of the initial statement." State v. DeRoxtro, 327 N.J. Super. 212, 223 (App. Div. 2000) (citation omitted). The prosecutor did no more than DeRoxtro allows.

III.

Defendant next claims that the court erred in restricting cross-examination of the mother by the defense regarding her status as an illegal alien and her use of an allegedly fraudulent social security card at work as a means of challenging her credibility. We find no abuse of discretion by the trial judge in that ruling. State v. P.H., 178 N.J. 378, 389-90 (2004).

In limited circumstances a trial court may exclude evidence helpful to the defense when exclusion reflects the court's serious concerns about the interests of fairness and reliability. Thus, the court may limit defense cross-examination that otherwise would result in harassment, prejudice, confusion of the issues, irrelevancy, or would jeopardize witness safety. If a compelling reason exists for excluding a particular form of impeaching evidence that outweighs its relevance to a fair evaluation of a witness's credibility, such evidence may be barred.

[Id. at 389-90 (citations omitted).]

As the trial court recognized when ruling, the mother's credibility was of limited relevance to the case, since defendant was being tried for assault on her child, not on her. Further, evidence as to whether the mother used a fraudulent social security card in obtaining employment and when paying taxes was not certain in its nature, but instead was dependent upon the veracity of statements by defendant and upon various other facts of no relevance to the issue of whether a sexual assault had occurred. Verification of defendant's claims would have been time-consuming and peripheral to any matters at issue, and the inquiry could have misled the jury into believing the mother's status was directly relevant to their determination of the charges against defendant. As a final matter, in the context of the trial, the prejudicial nature of testimony regarding the mother's immigration status clearly outweighed its probative value. N.J.R.E. 403. We thus find no abuse of discretion by the trial judge in barring further exploration of these subjects. State v. Tirone, 64 N.J. 222, 228 (1974).

IV.

Defendant asserts error by the court in permitting the prosecutor to elicit an opinion by the victim's mother that the victim was telling the truth when she described the sexual assaults to her a few days after they had occurred. Even if such was the case, State v. Frisby, 174 N.J. 583, 594-95 (2002), we find that the error does not require reversal of the verdict in this case. The testimony was exceedingly brief in nature. Moreover, the victim herself testified at trial, and a videotape of her interview by the prosecutor was played for the jury. It therefore had an ample independent basis upon which to judge the victim's testimony, which we note was corroborated by evidence obtained upon her physical examination. State v. Macon, 57 N.J. 325, 338 (1971).

V.

In a final challenge to his conviction, defendant argues that the court should not have ruled that his prior conviction for second-degree sexual assault, for which he was sentenced on March 16, 1991 to three years in custody, and a 1998 disorderly persons conviction were admissible in evidence in sanitized form pursuant to State v. Brunson, 132 N.J. 377, 394 (1993). Defendant claims that he would have testified on his own behalf but for the court's rulings.

In finding the 1991 conviction admissible, despite its remoteness, the court focused on the degree of the crime and its consequent severity. It found the 1998 conviction admissible as evidence of continuing criminal conduct.

We reject defendant's challenge, which focuses on the remoteness of the second-degree sexual assault, finding a ruling that it was admissible to have been within the court's discretion. State v. Sands, 75 N.J. 127, 144 (1978). Although the Court in that case stated that "[t]he key to exclusion is remoteness," it further declared that "[r]emoteness cannot ordinarily be determined by the passage of time alone," and that "[t]he nature of the convictions will probably be a significant factor." Ibid.

In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried.

[Id. at 144-45.]

In this case, the defense sought to suggest that the mother had planted evidence of a sexual assault on the victim, and that the attacks on the victim had not taken place. If defendant had testified in accordance with this theory, his credibility would have been a significant issue in the case. In this circumstance, it would have misled the jury to have presented defendant as a person with an unblemished record, rather than one guilty of a second-degree offense and later criminal conduct of a lesser nature. We therefore find no error to have occurred in the court's ruling.

VI.

With respect to sentencing, we disagree with defendant's position that the two convictions for sexual assault should have been merged, since they involved different forms of conduct occurring on different nights. R. 2C:1-8a; State v. Hill, 182 N.J. 532, 542 (2005); State v. Brown, 138 N.J. 481, 561 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 325 (1997); State v. Mirault, 92 N.J. 492, 503-06 (1983). However, applying the principles that are set forth in the cases that we have cited, we agree that defendant's conviction for third-degree endangering the welfare of minor, contrary to N.J.S.A. 2C:24-4a, should have been merged into the sexual assault convictions, since the conviction for the third-degree crime arose out of the same conduct that provided the foundation for those sexual assault convictions.

The State concedes that defendant's sentences for the two sexual assault convictions, which exceeded the presumptive terms then set forth in N.J.S.A. 2C:44-1f(1)(b) and (c), must be vacated, and the matter must be remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). In light of this disposition, we decline to address defendant's remaining sentencing arguments.

Defendant's convictions are affirmed; his sentence is vacated, and the matter is remanded for resentencing.

 

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A-6589-03T4

RECORD IMPOUNDED

July 13, 2006