STATE OF NEW JERSEY IN THE INTEREST OF K.K

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2856-06T42856-06T4

STATE OF NEW JERSEY

IN THE INTEREST OF K.K.

___________________________________________________

 

Argued October 8, 2008 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-2516-06.

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Pugliese, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, on the brief).

PER CURIAM

Defendant, K.K., appeals from the Family Part's final dispositional order that 1) adjudicated him delinquent, having committed fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; 2) imposed a sentence of concurrent eighteen-month probationary terms with specific conditions and financial penalties; and 3) required defendant to register pursuant to Megan's Law, N.J.S.A. 2C:7-2.

K.K. raises the following issues for our consideration:

POINT I

K.K.'S CONVICTION OF FOURTH-DEGREE CRIMINAL SEXUAL CONTACT AND THIRD-DEGREE ENDANGERING THE WELFARE OF A CHILD MUST BE VACATED. THE FORMER CHARGE MUST BE DISMISSED WITH PREJUDICE AND THE LATTER MUST BE MODIFIED TO A CONVICTION OF FOURTH-DEGREE LEWDNESS.

A. None Of The Elements Of Fourth-Degree Criminal Sexual Contact Were Established.

B. The Court Failed To Find All Of The Elements Of The Third-Degree Crime Of Endangering The Welfare Of A Child.

C. Based On The Court's Findings Concerning K.K.'S Conduct He Could Not Have Been Found Culpable For Anything Other Than Fourth-Degree Lewdness.

POINT II

THE DOCTRINES OF DOUBLE JEOPARDY AND OF FUNDAMENTAL FAIRNESS REQUIRE THAT UPON DISMISSAL OF THE CHARGES OF CRIMINAL SEXUAL CONTACT AND THIRD-DEGREE ENDANGERING THE WELFARE OF A CHILD, THE STATE MUST ALSO BE BARRED FROM RETRYING THE JUVENILE IF PROSECUTION IS TO BE BASED ON THE SAME CONDUCT. (Not Raised Below).

A. Regarding The Charge Of Criminal Sexual Contact The Doctrines Of Double Jeopardy And Of Fundamental Fairness Preclude A Second Prosecution Of The Juvenile Based On The Same Facts.

B. Regarding The Endangering Charge The Doctrines Of Double Jeopardy And Of Fundamental Fairness Preclude A Second Prosecution Of The Juvenile Based On The Same Facts.

POINT III

THE COURT VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE BY PRECLUDING HIM FROM PRESENTING EVIDENCE OF SPECIFIC INCIDENTS OF THE COMPLAINANT'S UNTRUTHFULNESS AND OF HER BIAS AGAINST HIM.

POINT IV

THE IMPROPER ADMISSION OF THE INTERVIEWING OFFICER'S HEARSAY TESTIMONY AND THE CHILD'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE DENIED DEFENDANT THE RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We reverse the adjudication of delinquency as to the charge of criminal sexual contact, vacate the sentence imposed, and remand for the entry of an order dismissing that charge. In all other respects, we affirm.

I.

Defendant, who was thirteen years old at the time, lived with his mother, D.K., in the same residential complex as, but approximately three blocks away from, the alleged female victim, A.V., who was eight years old. A.V. lived with her mother, D.P., and her mother's fiancé, N.Z., who is also D.K.'s son. N.Z. and K.K. are half-brothers, and A.V. referred to defendant as her uncle.

Before trial commenced, the State advised that pursuant to N.J.R.E. 803(c)(27), it intended to introduce various statements that A.V. allegedly made to a number of people. It was agreed that procedurally the judge would conduct a Rule 104 hearing to determine the admissibility of the statements before the actual trial testimony commenced.

D.P. testified that during the fall of 2005, she was pregnant and, because it was a "high-risk pregnancy requiring bed rest," A.V. would occasionally spend the night at D.K.'s home. In January 2006, A.V.'s school counselor called and told D.P. that one of A.V.'s classmates claimed that A.V. told her that defendant was trying to have sex with her. D.P. confronted A.V. when she came home from school that afternoon, and the child acknowledged that defendant had "touch[ed] her in [her] private," pointing to her vaginal area. A.V. also told her mother that K.K. tried to "pull her panties down," "put his fingers into her vagina," and asked "why don't you kiss my private and I'll kiss yours . . . ." A.V. resisted, however, "pushing [K.K.] off, telling him not to do that." A.V. described to her mother how K.K. had masturbated in front of her.

D.P. acknowledged that A.V. could not "give [her] any definitive dates or times," though the child insisted one of the incidents occurred on September 24, 2005, the night of D.P.'s baby shower. On that occasion, after the party was over and everyone returned to D.K.'s home, K.K. approached A.V. in an upstairs bedroom and asked whether she wanted him "to put [his] private in [her] private." A.V. refused and K.K. left. On cross-examination, D.P. testified that according to A.V., the "baby shower [incident] was the last incident that occurred," and that the other events happened on two occasions prior to September 24, 2005. After hearing about these incidents from her daughter, D.P. immediately called the police.

A.V.'s friend, C.D., who was eleven years old at the time of trial, testified that A.V. told her and other friends, that "a boy in her [apartment] complex . . . put his private in her private and white . . . stuff [came] out of his." C.D. claimed that A.V. did not tell her when this occurred. C.D. was confused about where A.V. said this had happened, first telling investigator George Trillhaase from the prosecutor's office it happened in A.V.'s backyard, but later testifying that A.V. told her it happened in D.K.'s bedroom. C.D. told her mother about the conversation on the day it happened, but her mother did not believe anything had actually occurred between A.V. and the unnamed boy.

On cross-examination, C.D. acknowledged that she thought A.V. "was joking" about the incident because "she didn't look afraid, she didn't look worried. She just looked like she was trying to impress her friends [by] saying it out loud." C.D. claimed the conversation with A.V. took place "before school started," i.e., prior to September 2005.

Trillhaase interviewed both A.V. and D.P. on January 18, 2006, and recorded A.V.'s interview on a digital video disc that was played for the judge. A.V. told Trillhaase that what defendant "did to [her]" "happened three times," and that the first "time was [after] [her] mom's shower." A.V. said she fell asleep and when she woke up [defendant] was right in [her] face." She "told him to get out because he was touching [her] private part" underneath the underwear she had on. After telling Trillhaase there were "[t]wo more" incidents, A.V. stated "I forgot, I just forgot both of them." A.V. told Trillhaase she "want[ed] to ask [her] mom," but the investigator continued to engage A.V. in conversation without interrupting the interview.

A.V. then recalled a second incident with defendant that occurred in D.K.'s bedroom, but she could not remember any specific details. A.V. recalled a third occasion, when she and defendant were in D.K.'s bedroom, and she was on the bed watching television. Defendant had his pants down, and A.V. described how he masturbated and she saw "white stuff" come out of his "private." After playing A.V.'s recorded statement, the State rested for purposes of the N.J.R.E. 104 hearing.

Defendant called his mother as his sole witness at the preliminary hearing. D.K. testified about the strained relationship she had with D.P., who she believed had become pregnant in hopes of "trapping" her son, N.Z., into marrying her.

Defense counsel argued that A.V.'s statements to Trillhaase, D.P., and C.D. should not be admitted into evidence for a variety of reasons that we discuss in greater detail below. The judge disagreed. Thereafter, the State and defendant stipulated to the admission of the testimony adduced at the N.J.R.E. 104 hearing, and the State called A.V. as its sole additional witness.

When asked in open-ended fashion to tell the judge about what had happened, A.V. testified that defendant "touched [her] and [] tried to put his private in [her] private." The following exchange then took place between the prosecutor and A.V.:

Q. Now, how did this . . . begin?

. . . .

A. He came to the room, and he said, "Want . . . me to put my private in your private?"

Q. And what did you tell him?

A. No.

Q. And what did he do after that . . . ?

A. He went back to his room.

. . . .

Q. Did anything else happen that time?

A. No.

A.V. then described a second incident that also occurred in D.K.'s bedroom. This time, she was watching television, when defendant "tr[ied] to pull [her] pants down." She told him to stop, and he did, but A.V. described how defendant masturbated and she saw "white stuff" come out of his "private." In describing the third incident, A.V. testified that defendant "tried to climb on top of [her]" while she was on the bed in D.K.'s bedroom. She pushed him off, and nothing else happened. On cross-examination, A.V. testified that the masturbation incident occurred first, "around like August," of 2005, and that the first incident she had described occurred on the day of her mother's shower, in September.

When the State rested, defendant moved for a judgment of acquittal. R. 3:18-1. Among other things, he argued that the State had failed to prove the necessary elements of fourth-degree criminal sexual contact because it had failed to prove defendant used "physical force or coercion" upon A.V. With little explanation, the judge denied the motion.

Defendant called John Kudirka as his first witness. He was defendant's neighbor since 2002, and described him as "a good kid." He further testified that defendant's reputation for truthfulness was good. Kudirka also knew A.V. and when asked what her reputation for truthfulness was in the community, he responded, "She was a little troublemaker. She used to make up stories and stuff to get attention for herself." Defense counsel then asked if Kudirka knew of any specific instances of such conduct by A.V., and the prosecutor objected. When the judge sustained the objection, defense counsel indicated he "ha[d] nothing further."

Defendant called Stephanie Scott as his next witness. She, too, had been a neighbor of A.V., and when asked about A.V.'s reputation in the area, responded, "[S]he would like to make up stories, tell lies to the kids, to my children." William Callejas, defendant's uncle, testified that he lived with defendant and D.K. during the relevant time period. Callejas suggested it was unlikely that A.V. was ever alone in the house with defendant because D.K. was A.V.'s "shadow constantly." Callejas also testified that A.V. did not stay in the house for any period of time on the night of her mother's baby shower, leaving with D.P. shortly after they arrived.

D.K. testified that she had a close relationship with A.V. and would occasionally pick her up and take her to her home. D.K. claimed that she never left A.V. alone in the house with Callejas or defendant. D.K. further testified that on the night of the baby shower, A.V. never went upstairs into D.K.'s bedroom.

Defendant testified and denied that any sexual incident ever occurred between him and A.V. As for the alleged September 24, 2005 baby shower incident, he admitted that he was upstairs on the hallway computer, but denied that he attempted to get on top of A.V., noting she was downstairs the entire evening. Defendant was the final witness, and the judge reserved his decision until he received and reviewed the written summations of both sides.

Approximately one month after trial, the judge entered his findings and conclusions orally on the record. Noting defendant was charged in the complaint with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and third-degree endangering the welfare, N.J.S.A. 2C:24-4a, he began by stating he was "satisfied [defendant] committed these offenses." Specifically, the judge found that defendant's "masturbation . . . in front of an eight-year old is sufficient . . . to make a finding of delinquency under [N.J.S.A.] 2C:24-4" and that "the touching of [A.V.] . . . under her shirt [on her] private parts is sufficient to satisfy the [charge] of criminal sexual contact." Additionally, the judge concluded:

I would find, at least from looking at [A.V.], that she is in fact traumatized. I know there's no expert reports about that and there's no testimony about that, but . . . from just observing her, this whole incident, the way she's been treated by [defendant], and I'm sure now at this particular point the dynamic of the family, which I'm sure is really very bad, has really . . . taken a toll on this young child, and that is very unfortunate. Again . . . she's definitely traumatized as a result of this.

As for the inconsistencies between the testimony of A.V., her prior statements, and amongst those statements, the judge concluded:

[W]hen these type of things happen to an eight year-old, they are not equipped to articulate . . . what actually has happened.

. . . .

. . . I find . . . that there were a lot of things happening around this child that she didn't understand then and probably still doesn't understand even today, but they were happening around her.

And . . . what has been characterized as different versions are . . . very consistent with the fact that [A.V.] was being exposed to a touching on the part of [defendant], and she was also being exposed to his exposing his private parts, and I find that based on what I heard and [A.V.'s] explanation of it . . . the way she showed the movement of his hand on his penis . . . [is] sufficient to satisfy me that really what was happening is [defendant] was . . . masturbating in the presence of this child, and that's what I find was going on.

. . . [A.V.'s] testimony was credible. The testimony that was not credible was the testimony of [defendant].

As to the inconsistencies in A.V.'s versions of when the offenses occurred, the judge noted,

[T]here was a big issue about timing and about the shower . . . but that was not the only day. And, again, if one were held to keep finding the exact day . . . when an eight-year-old is touched inappropriately . . . it would be a pretty easy thing to go around abusing eight-year-olds, because you'd never be able to do it.

. . . .

I am finding that over that period of time . . . [defendant] masturbated in front of her, touched her private parts, touched her vagina, and was -- at one point was actually on top of her where she basically woke up . . . . [T]hat was a violation of [N.J.S.A.] 2C:14-3b.

I . . . find that [A.V.] was exposed to [defendant's masturbation] on a number of occasions . . . and one time she said she told him to stop . . . . And thank goodness, he did, because there's no indication that there was any force . . . and there's no indication of any penetration . . . .

So I'm satisfied that the masturbating . . . in front of an eight-year-old is sufficient . . . to make a finding of delinquency under . . . [N.J.S.A.] 2C:24-4a [], and the touching of where [A.V.] said [defendant] put his hand . . . under her shirt and touched her private parts is sufficient to satisfy the criminal sexual contact.

The judge noted that A.V. told Trillhaase what happened to her was "[n]asty," something the judge believed "sum[med] up th[e] case."

II.

In Point I, defendant argues that the State failed to prove the necessary elements of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. He further argues that the judge failed to find the necessary elements of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, though he concedes that the findings of fact made by the judge support an adjudication of delinquency as to fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). In Point II, he contends that the principles of double jeopardy and fundamental fairness bar the State from re-trying him for either offense.

A.

N.J.S.A. 2C:14-3b provides that "[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in [N.J.S.A.] 2C:14-2c[](1) through (4)." It is conceded by the State that the only subsection applicable to this case would be the first, i.e., that defendant committed sexual contact by "us[ing] physical force or coercion." N.J.S.A. 2C:14-2c(1). The State further concedes that defendant did not use "coercion."

Defendant argues that there was simply no proof introduced by the State that he used any "physical force" during any of the incidents. In fact, defendant points out that the judge explicitly found "there's no indication that there was any force" used by defendant. The State counters that the judge's finding in this regard was limited solely to the incident of defendant's masturbation in front of A.V., though it concedes that the judge never made a finding that defendant used "physical force" in the commission of any of the incidents. The State further contends that the judge implicitly found that defendant had reached under A.V.'s underwear to touch her vagina and that "if an actor must move clothing to gain access to intimate, body parts . . . then he has used force intrinsic to the touching," and is guilty of sexual contact by use of physical force.

In State in re M.T.S., 129 N.J. 422 (1992), the Supreme Court held that "[t]he definition of 'physical force' is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration." Id. at 444. The Court further noted that "the contrary interpretation of force -- that the element of force need be extrinsic to the sexual act -- would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration." Ibid. "That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible." Ibid.

However, we have questioned whether these general principles enunciated in M.T.S. necessarily apply "to any type of sexual touching which is not consensual." State v. Thomas, 322 N.J. Super. 512, 519 (App. Div. 1999), aff'd. 166 N.J. 560 (2001), superseded on other grounds by statute, L. 2001, c. 129 (codified at N.J.S.A. 2C:43-7.2), as recognized in State v. Parolin, 171 N.J. 223, 232 (2002). In Thomas, we noted that M.T.S.'s reasoning could not apply to the charge of sexual contact of a minor because, "such a[] . . . victim . . . is considered incapable of giving such permission or consent under our law." Thomas, supra, 322 N.J. Super. at 515. We also noted M.T.S. was "inapposite" to the facts presented because "[M.T.S.] involved an act of sexual penetration . . . and the Court, in construing the phrase 'physical force' . . . concluded that . . . the very force of penetration . . . was sufficient to satisfy the physical force element of second degree sexual assault." Ibid.

We accept our prior analysis in Thomas and conclude that the State must prove defendant used "physical force" in order to sustain the charge of criminal sexual contact under N.J.S.A. 2C:14-3b. Merely proving that sexual contact occurred is insufficient. We also conclude that in order to reach the proper result in this case, we need not construe the statute any further beyond rejecting the State's interpretation of "physical force."

The State argues that the judge implicitly concluded that defendant used "physical force" by reaching under A.V.'s underwear in order to make contact with her genitalia. This interpretation of "physical force" leads to an anomalous result. Since "sexual contact" requires "an intentional touching" "either directly or through clothing," N.J.S.A. 2C:14-1d, the "physical force" required to place one's hand under the garments of the victim, according to the State, would be sufficient to criminalize the act. Contact made through the clothing would not be criminalized unless some other kind of "physical force" was utilized. We doubt this could have been the Legislature's intention when it decided to criminalize all "sexual contact" accomplished through the use of "physical force."

Rather, we are convinced that the judge failed to find that defendant used any "physical force" whatsoever and instead based his adjudication of delinquency on the mistaken belief that the State need only prove that sexual contact occurred. We therefore reverse the adjudication of delinquency in this regard, vacate the sentence imposed, and remand the matter to the trial judge for the entry of an order dismissing this charge.

B.

Defendant also argues that the judge failed to find a necessary element of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, specifically that his sexual conduct "tended to impair or debauch the morals of A.V." We disagree.

The statute provides in pertinent part,

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

[N.J.S.A. 2C:24-4a.]

In State v. Hackett, 166 N.J. 66 (2001), the Court considered whether defendant's nudity in front of very young girls was sufficient to sustain a conviction for endangering, concluding "there must be proof that the nudity went beyond mere exposure and 'would impair or debauch the morals' of the children subjected to such conduct." Id. at 77. The question to be determined is "not whether the victims of the alleged endangering actually had their morals impaired or debauched, but whether the actor's 'sexual conduct' was conduct that likely would impair or debauch the morals of a child in the community. Such a determination is well within the abilities of the average jury, and allows the jury to fulfill its role as arbiter of community standards when applying the laws of our State." Id. at 83.

We concede that the judge did not expressly utter the statutory phrase, "impair or debauch the morals" of A.V. in adjudicating defendant delinquent of the charge. However, he made several explicit findings that clearly support the conclusion that defendant's sexual conduct actually had such an effect upon A.V. The judge found that defendant was "masturbating in the presence of" A.V. who was being "taken advantage of by [defendant]." He concluded that this was "a rather disturbing thing to [] an eight-year old[,]" and that A.V. was "traumatized." The judge specifically concluded that A.V.'s description of the incident was not the product of any "fantasizing," or as the result of prior discussions she had with her mother about sex. Taken in their entirety, we are convinced that the judge indeed found that defendant's conduct actually "debauched or impaired" A.V.'s morals, and we find no basis for reversal in this regard.

III.

We granted defendant's motion to supplement the record so that we might fully consider the issue he raises in Point III. In a certification dated October 23, 2007, defendant's trial counsel alleges that if permitted to answer the question he posed regarding instances of A.V.'s being "a troublemaker and attention seeker," Kudirka would have testified to one specific incident. On that occasion, Kudirka was present in defendant's home when A.V. accused him of "kissing a girl" in his bedroom. Kudirka would have further testified that D.K. scolded defendant, and that A.V. locked herself in the bathroom, only to eventually emerge and admit that she "had lied about the entire incident."

Defendant argues that pursuant to State v. Guenther, 181 N.J. 129 (2004), the judge erred by precluding inquiry into specific instances of A.V.'s conduct that supported Kudirka's opinion regarding her reputation for truthfulness. The State contends that defendant failed to properly raise the issue below, thus procedurally barring our consideration of it now, and that the specific instance of A.V.'s false allegation is substantially different from the circumstances of the charges against defendant. In sum, the State contends that Kudirka's testimony, assuming it mirrored defense counsel's certification, would not be admissible under Guenther.

Our evidence rules generally prohibit the use of "specific instances of conduct" to prove "a trait of character." N.J.R.E. 608(a). In Guenther, however, "the Court created a narrow exception to N.J.R.E. 608 . . . to permit a defendant to attack a victim's credibility by presenting evidence of a prior false accusation." State v. A.O., 397 N.J. Super. 8, 28 (App. Div. 2007), certif. granted, 194 N.J. 446 (2008). Application of this exception is limited "to cases in which the victim-witness' credibility '[i]s the central issue in the case.'" Ibid. (quoting Guenther, supra, 181 N.J. at 156). "In deciding whether to permit the impeachment of a victim-witness who allegedly made a prior false accusation, trial courts must first conduct an admissibility hearing pursuant to N.J.R.E. 104." Guenther, supra, 181 N.J. at 157. Factors to be considered in deciding the issue of admissibility include

1. whether the credibility of the victim-witness is the central issue in the case;

2. the similarity of the prior false criminal accusation to the crime charged;

3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;

4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and

5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time.

[Ibid. (emphasis added).]

Effective July 1, 2007, after the trial in this case, N.J.R.E. 608 was amended by the addition of a new subparagraph (b), which provides,

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

[Emphasis added.]

The amendment was specifically adopted to reflect the Court's holding in Guenther. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).

We need not consider the procedural arguments raised by the State. Both the holding in Guenther and the subsequent amendment to N.J.R.E. 608 make it clear that when defendant seeks to impeach the victim-witness' credibility through specific instances of prior false accusations, the false claim must have alleged criminal conduct similar to that with which defendant is charged. In this case, Kudirka would have testified that A.V. falsely accused defendant of having kissed an unnamed girl in his bedroom in his house. Such conduct is not criminal, and, moreover, is so substantially different from the allegations A.V. made against defendant as to be irrelevant. We conclude there was no error in prohibiting defendant from introducing this evidence at trial.

IV.

In Point IV, defendant argues that the judge erred in admitting the recorded interview of A.V. conducted by Trillhaase, claiming it was "inconsistent and made under circumstances that created undue suggestiveness," and was otherwise "not sufficiently trustworthy to be admissible." We disagree.

The adoption of the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), was "necessary and appropriate in order to authorize, under certain circumstances, the admissibility in a criminal prosecution, of a child's out-of-court statement concerning acts of sexual abuse." State v. D.R., 109 N.J. 348, 363 (1988). While the tender years exception "serves legitimate and important law enforcement interests," it also "threatens the equally significant interests of the defendant, who seeks to exercise the basic rights of confrontation and cross-examination." Id. at 369. Thus, only out-of-court statements that possess "sufficient indicia of reliability" should be admitted. Id. at 363.

Rule 803(c)(27) provides in part:

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . the child testifies at the proceeding . . . .

In considering the trustworthiness of the statement, the court may consider a number of factors, including "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Idaho v. Wright, 497 U.S. 821-822, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)).

Recognizing that "the 'investigative interview' is a crucial, perhaps determinative, moment in a child-sex-abuse case," the Supreme Court has provided additional guidance whenever the statement sought to be introduced is one made by a tender-years declarant to law enforcement. State v. Michaels, 136 N.J. 299, 309 (1994). The Michaels Court concluded that "[t]he basic issue to be addressed at [] a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." Id. at 320.

In Michaels, the Court reviewed the investigative interviews at issue and noted "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions." Id. at 321. This evidence was sufficient "to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony [we]re unreliable, and therefore justif[ied] a taint hearing." Ibid.

In this case, defendant argued before the judge that A.V. forgot various details during the interview, asked to speak to her mother, and had "no spontaneous recall" of events. He claimed that Trillhaase's questioning was "coercive and suggestive." In rather cursory fashion, the judge apparently rejected these arguments and admitted the recorded interview.

We have independently reviewed the transcript of the interview, and we find no particular indicia of suggestiveness in Trillhaase's conduct of the interview. He initially posed open-ended questions to A.V., and, only on limited occasions did he ask questions that were particularly leading in nature. However, "the use of leading questions to facilitate an examination of child witnesses who are hesitant, evasive or reluctant is not improper." State v. Smith, 158 N.J. 376, 390 (1999). There was no evidence that Trillhaase was biased, incessantly questioned A.V., used any threats or bribes with the child, or vilified defendant in any way. Trillhaase did not permit A.V. to speak to her mother during the interview, and the entire procedure was recorded.

Moreover, although the judge failed to expand upon his reasons for deeming the videotape admissible, in rendering his oral decision at the end of the case, he extensively discussed the inconsistencies in A.V.'s statement, the language she used to describe body parts and the act of masturbation, and her demeanor as she actually testified in court. These findings, although made at trial and not specifically during the Rule 104 hearing, convince us that the judge properly considered the appropriate factors governing admissibility of the interview. See Smith, supra, 158 N.J. at 389 (noting the acceptability of the judge waiting "until after the child had given her trial testimony to enable [him] to make a comparison before making [his] ruling[,]" thus enabling the judge to "compare key factors such as the spontaneity and consistency of the child's responses to questions and the language or terminology used by the child"). We find no error in the admission of the interview.

In sum, we reverse the adjudication of delinquency based upon the charge of criminal sexual contact because the State failed to prove that defendant used "physical force." We vacate the sentence imposed, and remand the matter to the trial court for the entry of an order dismissing that charge. In all other respects, we affirm.

 

We have been provided with a transcript of the interview.

We note the complaint charged defendant with a violation of N.J.S.A. 2C:14-3b, "committing an act of sexual contact . . . for the purpose of sexually arousing or sexually gratifying himself or to humiliate or degrade A.V. specifically by touching her in her private areas." Thus, the complaint did not specify under which particular subsection of the statute the State was preceding; instead it merely recited the definition of "sexual contact," N.J.S.A. 2C:14-1d. The second count charged K.K. with violating N.J.S.A. 2C:24-4a, by "having assumed the responsibility for the care of A.V. . . . [he] engage[d] in sexual conduct which impaired or debauched the morals of A.V." It was apparently never the State's theory that K.K. exercised supervisory care over A.V. which would have elevated the offense to a second-degree crime. Instead, the State prosecuted the case as a third-degree offense for which a special relationship between the actor and victim is not a necessary element.

N.J.S.A. 2C:14-1j defines "coercion" as it is used in N.J.S.A. 2C:13-5(1), (2), (3), (4), (6) and (7).

(continued)

(continued)

27

A-2856-06T4

RECORD IMPOUNDED

October 30, 2008