STATE OF NEW JERSEY v. GARY S. BRANIN, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4825-06T44825-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY S. BRANIN, JR.,

Defendant-Appellant.

_________________________________________________

 

Argued May 29, 2008 - Decided

Before Judges Stern, Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey

Law Division, Monmouth County, Indictment No.

06-07-1522.

Donald M. Lomurro argued the cause for appellant

(Lomurro, Davison, Eastman & Munoz, attorneys;

Mr. Lomurro, of counsel; Carrie A. Lumi, on the

brief).

Monica do Outeiro, Assistant Prosecutor, argued

the cause for respondent (Luis A. Valentin,

Monmouth County Prosecutor, attorney; Ms. do Outeiro,

of counsel and on the brief).

PER CURIAM

Defendant was convicted of two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts two and three). He was sentenced to concurrent five year terms to the custody of the Department of Corrections with 85% thereof to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

On this appeal, defendant argues:

POINT I THE TRIAL COURT COMMITTED PLAIN ERROR IN

ITS CHARGE REGARDING THE USE OF FRESH

COMPLAINT EVIDENCE AND THE USE OF

DEFENDANT'S STATEMENT AND, THEREFORE,

DEPRIVED DEFENDANT OF A FAIR TRIAL

(Not raised by trial counsel below)

A. THE TRIAL JUDGE COMMITTED PLAIN ERROR

IN DELIVERING A FUNDAMENTALLY-FLAWED

CHARGE REGARDING THE USE OF FRESH

COMPLAINT TESTIMONY

B. THE TRIAL COURT COMMITTED PLAIN ERROR

IN CHARGING THE JURY THAT DEFENDANT'S

STATEMENT TO POLICE MAY BE CONSIDERED

FOR CREDIBILITY PURPOSES WHEN DEFENDANT

DID NOT TESTIFY

POINT II THE TRIAL COURT COMMITTED REVERSIBLE

ERROR IN PERMITTING THE SEXUAL ASSAULT

NURSE EXAMINER, SUN BORDEN, OVER DEFENSE

COUNSEL'S OBJECTION, TO PRESENT DETAILED

TESTIMONY REGARDING THE ALLEGED SEXUAL

ASSAULT AND IN ADMITTING OUT-OF-COURT

STATEMENTS BY J.P. AS FRESH COMPLAINT

TESTIMONY

A. THE TRIAL COURT COMMITTED REVERSIBLE

ERROR IN OVERRULING DEFENSE COUNSEL'S

OBJECTION AND IGNORING HIS REQUEST

FOR A LIMITING INSTRUCTION REGARDING

SUN BORDEN'S TESTIMONY

B. THE TRIAL COURT COMMITTED REVERSIBLE

ERROR IN ALLOWING DETECTIVE SGT. LOUIS

FUNDORA TO TESTIFY AS TO STATEMENTS

MADE BY J.P. TWO DAYS AFTER THE INCIDENT

DURING A POLICE INVESTIGATION

C. THE TRIAL COURT COMMITTED PLAIN ERROR

IN ADMITTING THE CUMULATIVE TESTIMONY

OF PETER [H], CHRISTOPHER [H],

AND SGT. JOSEPH ROGERS UNDER THE FRESH

COMPLAINT EXCEPTION TO THE HEARSAY RULE

POINT III DEFENDANT WAS DEPRIVED OF A FAIR TRIAL

WHEN THE PROSECUTOR AND DEFENSE COUNSEL

ALLOWED J.P. TO TESTIFY VISIBLY HOLDING

ROSARY BEADS AND WHEN SHE ENGAGED IN

EMOTIONAL OUTBURSTS AND VOMITING IN THE

PRESENCE OF THE JURY (Not raised by trial counsel below)

POINT IV THE TRIAL COURT COMMITTED PLAIN ERROR IN

FAILING TO CURE THE PROSECUTOR'S COMMENTS

IN SUMMATION REGARDING DEFENDANT'S ELECTION

NOT TO TESTIFY (Not raised by trial counsel

below)

POINT V THE TRIAL COURT COMMITTED PLAIN ERROR IN

FAILING TO CHARGE LESSER-INCLUDED OFFENSES

AND IN FAILING TO RECORD A TELEPHONIC CHARGE

CONFERENCE REGARDING THE DECISION AS TO

WHETHER LESSER-INCLUDED OFFENSES WOULD BE

CHARGED (Not raised by trial counsel below)

We are satisfied that the aggregate of errors, even if not individually warranting reversal, combine to require reversal because defendant did not receive a fair trial.

I.

The alleged victim, J.P., testified that, while spending the 2005 Labor Day holiday weekend in the Highlands with her boyfriend, Christopher H. at the home of his father, Peter H., she and Christopher went to dinner at approximately 7:30 p.m. at the Sugar Shack, a local restaurant. They were seated at a table behind defendant, who was dining with a group including his wife and daughter. Defendant and Christopher knew each other as both were Highlands volunteer firefighters and J.P. had previously been informally introduced to defendant.

Following their dinner, J.P. and Christopher were invited by defendant to join his group. Defendant bought alcoholic drinks for everyone at the table. Defendant's wife and child subsequently left the restaurant, but defendant stayed and continued to have drinks with J.P. and Christopher. The three remained for about an hour and then left for another Highlands bar, Off the Hook, where defendant again purchased drinks for the couple.

J.P. testified that, while they were at Off the Hook, defendant had remarked about her breasts to another male patron and told "some guy" to look at her "boobs." Defendant also told Christopher that J.P. was "hot" and that he would be "taking her away from [Christopher] by the end of the night."

The group then returned to the Sugar Shack and continued to drink. J.P. testified that she danced with a group of people, though no one in particular, while there. Christopher would occasionally be pulled onto the dance floor by J.P. He testified that he was jealous of his girlfriend's dancing with others and that they got into a disagreement over it. Christopher also testified that he told defendant that he was upset watching J.P. dance, that defendant had told him "he would take care of it," and that defendant went out onto the dance floor where J.P. was dancing. J.P. testified that defendant had approached her on the dance floor and told her that Christopher had sent him because he "didn't want [J.P.] dancing with other people."

Christopher also testified that at some point during the night he informed defendant that he was going to the restroom while J.P. was still on the dance floor. When he returned "she wasn't on the dance floor any more and she wasn't around." In the interim, J.P. noticed that Christopher was not at the bar area, and asked defendant if he knew where Christopher had gone. Defendant told her that he "went home." Upset that Christopher had left, she grabbed her purse and left the restaurant and walked "in the direction towards" the H. residence. When Christopher returned to the bar area, he asked defendant if he had seen J.P., and defendant responded that he had not. Christopher claimed defendant told him to stay at the Sugar Shack while he looked for J.P.

After leaving the Sugar Shack, J.P. stopped at the apartment of her friend, Melissa Soden. Soden testified that in the early morning hours of September 3, 2005, she and her boyfriend, Bradford Jennings, were at home. She stated that J.P. arrived, said she was "very upset," and appeared to have been crying. J.P. told Soden and Jennings that she was looking for Christopher, and the three of them unsuccessfully tried contacting him on Jennings' cell phone. After staying at Soden's apartment for approximately ten minutes, J.P. left.

J.P. then proceeded to the H. home, where she encountered Peter H. who instructed her to remain in the home while he searched for his son. J.P. phoned Soden, informing her that she was at Christopher's home and that he was not there. She then left the house to continue searching for him.

Peter H. testified that he found Christopher at the Sugar Shack and that his son informed him that he was looking for J.P. At that time, defendant approached the two of them and was standing next to them when he told Christopher that J.P. was at home. Defendant then invited himself to join them at their home for a beer, at which point Peter told defendant it was not a "good idea" and to go home. Defendant then rode away on his bicycle from the pair, preceding them up Bay Avenue towards the fire house.

Meanwhile, J.P. continued searching for Christopher by heading back to the Sugar Shack. She observed defendant approaching her on his bike from the direction of the Sugar Shack and asked him whether he had seen Christopher. Defendant replied in the negative. At this time, J.P. went back to Soden's apartment, and defendant followed her there. Soden testified that, while there, she saw defendant "put his arm around" J.P.'s waist, then remove it when Soden entered the room and J.P. looked at him "with disapproval." Soden stated that she, Jennings, and J.P. again tried to contact Christopher. When their attempts proved unsuccessful, Soden and Jennings offered to walk J.P. back to the H. home. However, defendant interceded and assured them that he was a "buddy" of Christopher's and that he would take J.P. to Christopher. After J.P. left, Soden noticed that J.P. had left her cell phone in the kitchen.

After leaving the Soden apartment, defendant suggested that Christopher "might be in the firehouse" and that even if he was not, J.P. could use the phone there since she did not have her cell phone. Once inside the firehouse, defendant directed J.P. to follow him to an area behind the bar, where he said the phone was located. J.P. followed defendant behind the bar and once there, she testified that he "pushed [her] up against the bar," so that she was trapped by defendant, who was standing behind her.

J.P. testified that defendant pulled up her skirt and unsuccessfully tried to penetrate her vagina and anus "in both areas" with his penis. She attempted to move away, while telling him "no" and "stop." She eventually managed to "move around" and face defendant. At this point, according to J.P., defendant penetrated her vagina digitally, and "actually put his fingers inside [her] vagina," while she continued to tell him to "stop," and that she wanted to find Christopher. She then attempted to escape the bar area, but defendant blocked her exit. J.P. testified that defendant "got down on his knees" in front of her, "slid" her underwear to the side, and then put his tongue on her vagina. She testified that she was "freaking out," "was scared," "in shock," and "didn't know what to do."

J.P. further testified that while defendant was assaulting her, she observed a phone on the bar and attempted to call Christopher, but stopped when defendant ordered her to "put down the phone." She then picked up the phone a second time and tried to call 911. J.P. then told defendant she would be right back, but fled the firehouse after defendant permitted her to exit the bar area.

David Higbee testified that at approximately 1:30 a.m., while walking his dog on Bay Avenue, he observed J.P. running from the firehouse while "crying and wailing." He observed that she was "nearly hysterical" and was "pulling at her clothes" in an attempt to straighten them. J.P. ran to Higbee, telling him that "they were after her" and asking him to walk with her so that she would be "safe." They walked about three or four feet when a Highlands police vehicle passed them. The police vehicle, driven by Sgt. Joseph Rogers, made a u-turn to return to the pair and as it approached, J.P. ran out into the road and screamed for help.

Sgt. Rogers testified that J.P. was "hysterically crying," "running towards" his police vehicle and "shaking vigorously," and that she reached into his car window to try to get him to exit the car. Once he exited the vehicle and walked her to the back of it, J.P. indicated to the officer that someone had hurt her and that she "needed help." J.P. sunk to the ground, crying and pulling Rogers down with her. Other police officers responded to the scene and tried to ascertain what had occurred to J.P., but she was reluctant to tell the officers who had hurt her, except to say that "it was a fireman."

During this time, Peter and Christopher had returned home and discovered that J.P. was not there. Peter instructed Christopher to remain home and again left to find her. Peter located her "sitting against the police cruiser" in front of the firehouse. She was "hysterical," and repeatedly told him that "he hurt me." When Peter asked if his son had hurt her, J.P. told him that "Gary did."

J.P. told Sgt. Rogers that she had been sexually assaulted in the firehouse and that she did not want to pursue the matter because "nothing [would] be done" because defendant was a fireman. J.P. was encouraged by the officer to come to the Highlands Police Department if she changed her mind and she then left with Peter. A few hours later, at approximately 4:00 a.m., J.P. went to the police department and spoke with Rogers, detailing what defendant had done to her in the firehouse. Rogers stated that J.P. told him that defendant had "inappropriately touched [her] by finger and by mouth." Testifying that he was concerned for her "medical needs," Rogers made an appointment for J.P. to see a Sexual Assault Nurse Examiner (SANE).

Detective Sergeant Louis Fundora took J.P. to the Riverview Hospital for her appointment with SANE nurse Sun Borden. After having J.P. sign a consent form, Borden took a history of the incident from her, detailing the nature of the sexual assault. Borden testified that this history was to be used as a guide in the examination and in creating a nursing care plan. As part of the examination, Borden conducted a full external body examination and an internal genital examination, noting that "no injuries" were present except for a small bit of blood on J.P.'s toe. Borden also collected various "genital specimen and vaginal and cervical swabs" from J.P.'s genitals, cervix, and mouth. J.P. provided Fundora with the clothes she was wearing at the time of the assault. The examination concluded at approximately 7:00 a.m., and J.P. went back to the H. residence and went to bed.

Later that afternoon, on September 3, 2005, J.P. told Christopher about the sexual assault. He testified that she told him that defendant "had sexually assaulted her." At about the same time, she noticed a voicemail on her cell phone from defendant. He said he "[j]ust wanted to see if [she was] okay and . . . made it home okay." J.P. and Christopher then left the home to retrieve his vehicle from the municipal parking lot, where it had been parked since the previous evening. Upon reaching the car, they found a note inside the vehicle, which stated "Chris call me, Gary," and contained defendant's cell phone number. J.P. and Christopher then drove to the police department, spoke again with Sgt. Rogers, gave him the note, and played the voicemail for him.

After leaving the stationhouse, J.P. and Christopher were approached by defendant as they walked to their car. J.P. testified that she immediately entered the vehicle, but that Christopher was unable to because defendant blocked his way. She claimed that defendant leaned into the car, and while looking at her, stated that "[y]ou can't press charges. I'll lose my family, my business. I'm so sorry Chris. I'm a scumbag." J.P. stated that she asked Christopher to shut the door and had her "head down" so she did not have to look at the defendant.

J.P. gave a formal statement to Fundora on September 5 and 7, 2005. After defendant was arrested, he gave Detective Fundora a videotaped statement. While not transcribed or set-out at length when played to the jury, it appears the statement is exculpatory, and acknowledged only taking J.P. to the firehouse to make a phone call.

Forensic scientist Annette Estilow testified regarding the analysis performed on J.P.'s clothing and stated that she found an amylase stain on "the whole crotch area." Estilow then sent a sample of the underwear for DNA analysis. Mary Kite performed the DNA analysis on the buccal swabs of J.P. and defendant and of J.P.'s underwear. She testified that she found both the victim's and defendant's DNA could not be excluded on the amylase stain.

A defense witness, Patrick Kranis, testified that J.P. was "buzzed up, a little drunk, maybe" while at the Sugar Shack and was "pulling" defendant and him on the dance floor to dance with him.

II.

Defendant alleges "plain error" in the admission of "fresh complaint evidence" and in the judge's charge on the subject. Defendant also objects to the admission of the testimony of SANE nurse Borden and in not giving a limiting instruction with respect to it. The problem with our review of the contentions is that both parties seem to blend the arguments on both subjects. We do not read the State as arguing - and understandably so - that Nurse Borden's testimony was admissible as "fresh complaint" (or an "excited utterance"). In fact, the State points to "the juxtaposition" of instructions relating to Nurse Borden with those of "the fresh complaint witnesses" to contend the judge made clear only the former could be considered substantively. The judge instructed the jury:

The evidence called fresh complaint testimony is not provided to bolster the testimony and credibility of J.P., but rather to dispel the erroneous impression that J.P. confided in no one whom you might expect her to seek out for sympathy and comfort. Now, the testimony of Sun Borden who testified as to what it is that J.P. told her about the assaults can be considered by you as substantive evidence. Because those were statements made in seeking medical treatment and analysis.

Defendant argues that "the instruction regarding the testimony of Sun Borden virtually compelled an unjust result," and that "[i]nstructing the jury that Ms. Borden's testimony could be considered as substantive evidence is tantamount to instructing the jury that Ms. Borden corroborates J.P.'s version of the incident."

The judge permitted Nurse Borden's testimony under N.J.R.E. 803(c)(4) relating to "Statements for purposes of medical diagnosis or treatment." The rule provides an exception to the hearsay rule for:

Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.

In charging the jury regarding Nurse Borden's testimony, the trial judge stated:

Now it's a general rule as I told you, a witness generally can only testify as to facts known by them. But remember I told you with an expert witness we allow them to testify using opinions . . . as to any matter in which they are versed, which is material to the case . . . . You remember last week we heard from SANE nurse, Sun Borden . . . . You are not bound by such expert witness' opinion, but you should consider each opinion and give it the weight to which you deem it is entitled, whether that be great or slight, or you may reject it in its entirety. In examining each opinion, you may consider the qualifications and credibility of each expert witness. It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exist. The value or weight of the opinion of the expert is dependent upon and is no stronger than the facts on which it is based. In other words, the probative value of the opinion will depend on whether from all the evidence in the case, you find that those facts are true. You may in fact determine from the evidence in the case that the facts that form the basis of the opinion are true, are not true, or true in part only. And in light of such findings you should decide what effect such determine [sic] has upon the weight to be given to the opinion of each expert. . . . The ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt is made only by the jury.

Defendant also asserts the "judge committed plain error in delivering a fundamentally-flawed charge concerning the use of fresh complaint testimony." He further asserts that the judge improperly admitted "out-of-court statements of J.P. as fresh complaint testimony" when Peter and Christopher H., Detective Fundora, and Sgt. Rodgers were permitted to testify as to what J.P. told them.

The defendant objected to Nurse Borden's testimony and suggested that the judge advise the jury the testimony "is not being offered for the truth" and was "being offered in furtherance of the patient's exam." In any event, the State argues "the admission of Nurse Borden's testimony and the testimony of the fresh complaint witnesses was not in error or constituted harmless error," "the jury instruction on fresh complaint testimony was appropriate and did not constitute plain error," "the jury instruction on SANE Nurse Sun Borden's testimony was sufficient," and the instructions were otherwise proper.

Nurse Borden's testimony was not admissible under the doctrine of fresh complaint, and as already noted, the State does not contend otherwise. Nor could the detail be deemed reasonably necessary to make a diagnosis or prescribe treatment. The testimony included the following:

Q: Did she indicate that he pulled her underpants to the side under [her] jean skirt?

A: Yes.

Q: And put his fingers inside of her?

A: Yes.

. . . .

Q: Did she indicate also that he had put his mouth on her?

A: Yes, she did.

Q: And did she say where on her or indicate where?

A: She pointed to her genital area.

Q: And furthermore did she indicate that he had his penis out?

A: Yes, she did.

. . . .

Q: Did she indicate whether or not there was physical restraint?

A: Yes, what she told me was that he held my arms with his hands.

. . . .

Q: . . . . And what did she indicate regarding oral contact? And I'm referring to page 4 of your report.

A: On the oral part, defendant licked patient. I put down yes, under genital.

Q: Okay. And was there any other box marked yes there?

A: Yes. Defendant's mouth touched patient's genital. Yes.

. . . .

Q: And if you can please go to page 5 of your report and what was the history taken regarding the genital contact?

A: I marked it yes, under offender's finger contacted patient's genital, yes. The offender's finger entered patient's vagina, yes.

Despite defendant's objection to the testimony and request for a limiting instruction, the judge did not provide either a limiting or curative instruction to the jury with respect to Nurse Borden's testimony. To the contrary, the jury was told it could be considered "substantively."

The State argues that Borden's testimony properly qualified as "statements for purposes of medical diagnosis or treatment" because Sgt. Rogers was concerned for J.P.'s "medical needs" when he made the appointment and that the SANE nurse was responsible for preparing a nursing care plan. During the trial, both the State and Borden emphasized that the questionnaire taken by J.P. prior to the physical examination was for the creation of a nursing care plan. That may be so, but the testimonial details were unnecessary for that purpose and unduly prejudicial to defendant. See N.J.R.E. 403(b). See also N.J.S.A. 52:4B-44, -50 to -60.

In order for 803(c)(4)'s exception to be applicable, J.P. had to have believed that "the statement would enable the doctor to treat" her because "[r]eliability is based on the declarant's belief that a doctor will properly treat him [or her] if the doctor is told the truth concerning the ailment." State in Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985) (regarding N.J.R.E. 63(12), the predecessor to N.J.R.E. 803(c)(4)). The patient's statements must be "made in good faith for purposes of medical diagnosis or treatment" and they must "describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment." State v. Pillar, 359 N.J. Super. 249, 289 (App. Div.), certif. denied, 177 N.J. 572 (2003) (quoting N.J.R.E. 803(c)(4)). However, J.P.'s statements to Nurse Borden did not concern "medical history, or past or present symptoms, pain, or sensations," but consisted mainly of J.P.'s allegations regarding the sexual assault. In any event, J.P.'s hearsay statement to Nurse Borden regarding the details of the assault were inadmissible. Pillar, supra, 359 N.J. Super. at 289-90; C.A., supra, 201 N.J. Super. at 33-34.

Fresh complaint testimony has the limited purpose of negating the inference that the alleged victim's failure to confide in anyone was inconsistent with having been sexually assaulted. State v. Hill, 121 N.J. 150, 163-66 (1990). Given this limited purpose, "[o]nly the fact of the complaint, not the details is admissible." Id. at 163. Thus, whenever fresh complaint evidence is admitted at a criminal trial, the "details of the offense should be confined to those minimally necessary to identify the subject matter of the victim's complaint." State v. Buscham, 360 N.J. Super. 346, 358 (App. Div. 2003) (quoting State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 589 (1988)). Accordingly, a trial judge should ensure that only "the fact of the complaint, not the details" are admitted. Hill, supra, 121 N.J. at 163. See also State v. Bethune, 121 N.J. 137, 147-49 (1990). We add that there is no suggestion that police officers were people J.P. would "confide" in or trust for purposes of the "fresh complaint" rule. Moreover, fresh complaint testimony requires that the complaint "must have been made spontaneous[ly] and voluntar[ily]" State v. Bethune, supra, 121 N.J. at 163; Buscham, supra, 360 N.J. Super. at 357-58, and if the complaint arises from an interrogation, the presumption that the complaint is spontaneous or voluntary is negated. Hill, supra, 121 N.J. at 168; Pillar, supra, 359 N.J. Super. at 282. Nor can it be said that statements to the police after her initial reaction to the attack can be deemed an excited utterance. See N.J.R.E. 802(c)(2); State v. Buda, __ N.J. __, __ (2008). At the retrial, the trial judge must be careful to distinguish between the statements to police officers which were admissible as "excited utterances" and those which were not.

Excessive hearsay testimony was admitted in this case. Moreover, defendant may well have been prejudiced by virtue of the lack of instruction as to its limited use. J.P. testified at the trial, and could be cross-examined as to what occurred and what she reported, and we do not hold that the erroneous admission of the hearsay testimony by itself warrants reversal.

III.

Defendant argues that the judge provided erroneous instructions to the jury regarding the use of defendant's videotaped statement to determine credibility. Defendant also argues that the videotape should not have been admitted. In charging the jury, the judge instructed:

Gary Branin elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner arriving at your verdict the fact that Mr. Branin did not testify. The facts should not enter into your deliberations or discussions in any manner at all. Gary Branin is entitled to have the jury consider all the evidence presented at trial. He is presumed innocent even if he chooses not to testify. Now, we had in this case a recorded video statement of the defendant . . . But the statement has been introduced by the prosecution, not as evidence of the defendant's guilt of the crimes charged, but to affect his credibility. Remember, the defendant in the recorded statement in the statement denied that anything happened on September 3rd 2005. The statement may be considered solely to determine the defendant's credibility, if you believe it does in fact affect such credibility, and not as evidence of his guilt. In this regard, in all fairness, you will want to consider all the circumstances under which the statement occurred. The extent to which defendant's credibility may be affected is for you to determine. You may give the statement what weight you think is appropriate. Consider the materiality and the relation of such statement to all other evidence in this case.

[Emphasis added.]

See also N.J.R.E. 803(b)(1). A defendant's statement may be offered against him in a criminal case, subject to N.J.R.E. 104(c). However, there was no N.J.R.E. 104(c) hearing conducted in this case.

In justifying her decision to admit the videotape over objection, the judge stated that defendant's credibility was at issue because the videotaped statement conflicted with the DNA evidence and the testimony of J.P. The judge also subsequently stated that defendant's grand jury testimony, which indicated the victim "was pleasuring herself" and which was not presented to the trial jury, may have conflicted with the videotaped statement and the DNA analysis. Thus, the judge reasoned that the recorded statement was relevant for credibility purposes and that defendant was aware if he "testified he would have to give one version and be impeached with the other and the decision was made for him not to testify."

The judge's charge to the jury can fairly be read as a comment on defendant's failure to testify by virtue of the juxtapositioning of the references to the statement and defendant's credibility. See State v. Tucker, 190 N.J. 183 (2007), in which the Supreme Court concluded that where the pretrial statement was freely given, the State was permitted to point out inconsistencies between two statements or a statement and trial testimony. Here, the defendant gave only one statement which was admitted before the jury. The record is not clear as to what he said, and his exculpatory grand jury statement (if he gave one) would hardly be inconsistent with the DNA evidence.

IV.

During her direct examination, J.P. became emotional and ill while testifying about the details of the sexual assault. During a break requested by the State, we are told J.P. vomited into a garbage can in the courtroom. The jury was not present at the time. The judge had excused the jury and instructed the victim to exit to an adjacent security hall if she felt ill while testifying. We perceive no prejudice to defendant.

Defendant contends, however, that he was prejudiced by J.P.'s possession of rosary beads during her testimony. The State and defendant concede they were aware that she had the beads. However, it was agreed the judge could not observe the beads from the bench, no one informed the judge of this, and the judge was not able to take any action to avert their prejudicial effect. The issue must be reviewed, therefore, as "plain error." See R. 2:10-2. Defendant admits that there is no New Jersey case supporting his claim that J.P.'s mere possession of the beads is prejudicial. However, he argues it falls within N.J.R.E. 610's prohibition on the admission of religious evidence.

The official comment to N.J.R.E. 610 notes that it "follows Fed. R. Evid. 610 verbatim," and cases interpreting Fed. R. Evid. 610 repeatedly state that it is the inquiry or introduction of evidence into a witness's religious belief that is prohibited. See United States v. Rushing, 313 F.3d 428, 433 (8th Cir. 2002)(inquiry into witness' conversion to Christianity was barred by Rule 610); United States v. Teicher, 987 F.2d 112 (2d Cir. 1993)("[t]he Rule proscribes the impeachment of witnesses based on their religious beliefs"; however, the Rule provides an exception "for the purpose of showing interest or bias"); United States v. Sampol, 636 F.2d 621, 666 (D.C. Cir. 1980)("Rule 610 bars the admission of evidence of religious beliefs of a witness for the purpose of showing that his credibility is impaired as a result of those beliefs").

This is not an N.J.R.E. 610 case. The State never referred to the witness' use of rosary beads or introduced evidence of J.P.'s religion. Nor did the State inquire into J.P.'s religious beliefs during the trial.

Defendant cites Commonwealth v. Dahl, 724 N.E.2d 300, 307 (Mass. 2000) as support for his argument. There the court held that the witness should not have been permitted to testify holding rosary beads. That case is distinguished because the witness, who was studying to be a nun, was extensively questioned about her religious beliefs. No such inquiry took place here. Nevertheless, we can perceive prejudice based on the possibility that flows from the belief of enhanced credibility which attaches to so devoted a witness. However, in the absence of objection and a relevant record, we do not know what the jurors observed. Accordingly, we do not reverse on this basis, but note it as part of the aggregate, and preclude such testimony on the remand.

V.

Finally, we are inclined to agree with defendant that he was entitled to a charge on the lesser-included offense of criminal sexual contact, N.J.S.A. 2C:14-3. The judge must charge the jury with an included offense if there is "a rational basis for a verdict convicting the defendant of" it. N.J.S.A. 2C:1-8(e); State v. Brent, 137 N.J. 107 (1994). The trial judge has an independent obligation to "instruct the jury of the lesser-included charges when the evidence 'clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense,'" "even if [it is] at odds with the strategic considerations of counsel." State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif. denied, 188 N.J. 489 (2006). See State v. Powell, 84 N.J. 305, 319 (1981).

The State contends that there was no rational basis for a jury to find defendant guilty of criminal sexual contact because the victim's testimony presented the jury with only one theory--that defendant orally and digitally penetrated her vagina.

Criminal sexual contact is defined as an "intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor . . . ." N.J.S.A. 2C:14-3. The jury could have concluded that defendant penetrated the victim, as indicated by her testimony and the DNA evidence. But the evidence also demonstrates that the jury could have also concluded that there was "intentional touching" by defendant "through clothing [] of the victim's . . . intimate parts" as his DNA was found on the victim's clothing and not on her person. N.J.S.A. 2C:14-3.

While it is not the role of the appellate court to judge the credibility of the evidence, State v. Jenkins, 178 N.J. 347, 363 (2004), the record provides a basis for this court to conclude that a rational jury could have determined that defendant committed criminal sexual contact without penetration. The expert testimony indicated that no injuries were found on J.P.'s vagina or anus, despite the victim's testimony that defendant had penetrated her with his fingers. As amylase stain containing defendant's DNA was found on the victim's underpants, there appears to be a rational basis for the jury to conclude that defendant had only engaged in criminal sexual contact with the victim. It is reasonable to conclude that, given the proofs offered by the State, the jury could have convicted defendant of criminal sexual contact, while acquitting him of the more serious charges.

We need not decide if the failure to charge the lesser offense itself constitutes plain error and warrants reversal. See, e.g., State v. Ingram, __ N.J. __, __ (2008); State v. Jenkins, supra, 178 N.J. at 361; State v. Choice, 98 N.J. 295, 300-301 (1985). Here, the reversal is warranted on the aggregate of other errors. State v. Orecchio, 16 N.J. 125, 129 (1954).

VI.

We have considered at length both our scope of review and the plain error doctrine, and are satisfied that the totality of circumstances, including the failure to charge the lesser-included offense and the assertion of a consent defense, combined with the trial errors, require that a new trial be ordered. We add, however, the testimony about J.P.'s demeanor and excited utterances on the night and early morning in question is admissible, see State v. Buda, supra, and that the evidence was more than sufficient to sustain a conviction. There is no preclusion to a retrial.

Reversed and remanded for a new trial.

The jury could not reach a verdict on count one, which charged attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 14-2c.

Just before Peter stated that J.P. had told him that defendant had "attempted to, you know, I'm not sure, I don't think she said rape. But I don't know what the exact phrase was," defendant had objected to the question in terms of "the details" of what was said. A sidebar conference on the subject could not be transcribed or reconstructed, but it appears the judge concluded the testimony was admissible. This was confirmed at the reconstruction hearing that was conducted.

Amylase "is a substance found in very high concentrations of saliva" that contains "cells from the inside of a person's mouth that would contain DNA."

Thus the judge properly noted the limited nature of "fresh complaint testimony." The judge referred to Detective Fundora as well as Peter H. and Sgt. Joseph Rogers as the fresh complaint witnesses. She did not refer to Higbee or to Christopher in this respect.

The State argues it was properly admitted under this rule "as statements made for purpose of medical treatment, but also as the basis for [Nurse Borden's] expert opinion."

This is so even if you consider "fresh complaint" evidence as merely an excited utterance in a case involving a sexual assault. See N.J.R.E. 803(c)(2); see also State v. Buda, __ N.J. __, __ (2008); Biunno, Current N.J. Rules of Evidence, comment 2 to N.J.R.E. 803(c)(2) (Gann 2008).

As already noted, the State does not assert Nurse Borden's testimony qualified under the "fresh complaint rule" or constituted "an excited utterance."

The record is void of reference to any treatment or care J.P. received from Borden. The testimony of the State's witnesses indicate that J.P. was at the hospital so that she could be examined for evidence and that she was not necessarily a willing, voluntary patient seeking treatment.

The statements to Higbee, Peter and Rogers at or close to the firehouse seem to be admissible as excited utterances, and the statements to Christopher might constitute "fresh complaint" testimony if she confided in him.

At the reconstruction hearing, it was agreed defendant did not raise the issue.

Despite the inability to reconstruct the record, defendant acknowledges no request was made for the lesser-included at the charge conference.

In defendant's summation, counsel noted J.P. "never saw [defendant'] penis," that he never "tried to place his penis inside her vagina," that there was no "physical evidence that [any] violent act occurred," and there was no "mark on [J.P.s] vagina or inside her vagina." Counsel's view was that J.P.'s story was manufactured to avoid a rage by Christopher H. and so as not to upset her mother, and he emphasized "[i]f Gary did what [J.P.] said that he did, his saliva would not only be on her panties or underwear, but it would be on her genital area."

(continued)

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A-4825-06T4

August 22, 2008