STATE OF NEW JERSEY v. D.K

(NOTE: The status of this decision is .)
N.J.S.A. 2C:24-4a (count three); and second-degree official misconduct, in violation of N.J.S.A. 2C:30-2 (count four). The jury could not reach a verdict on two other counts of the indictment pertaining to B.D., which were: first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a (count five); and second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c (count six). At the second trial, the jury convicted defendant of counts five and six. "> 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3688-06T2

A-5182-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.K.,

Defendant-Appellant.

___________________________________

 

Submitted February 11, 2008 - Decided:

Before Judges A. A. Rodr guez, C. S. Fisher and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-01272.

Thomas J. Buck, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM.

These appeals, which we have calendared back to back, arise from a single indictment that resulted in two trials. The indictment charged defendant D.K., a police officer, with several counts of endangering the welfare of A.D., a fourteen-year old girl, and two counts of sexual assault against B.D., defendant's fourteen-year old stepson. The first jury convicted defendant of the counts pertaining to A.D., which were: second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4b(3) and -4b(4) (counts one and two); third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (count three); and second-degree official misconduct, in violation of N.J.S.A. 2C:30-2 (count four). The jury could not reach a verdict on two other counts of the indictment pertaining to B.D., which were: first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a (count five); and second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c (count six). At the second trial, the jury convicted defendant of counts five and six.

Following merger of convictions, defendant was sentenced to an aggregate term of seventeen years with a six-year parole disqualifier, mandatory fines and penalties, community supervision for life, full compliance with Megan's Law and forfeiture of his public office. We now reverse all convictions.

ALLEGATIONS CONCERNING A.D.

Defendant, responded to the residence of A.D. to investigate a complaint of theft of a friend's camera. While speaking with the complainant and A.D.'s mother, defendant commented that A.D. was beautiful. Subsequently, defendant made a number of visits to the home to socialize with A.D.'s mother. On several occasions, defendant was on duty when visiting A.D.'s mother. Eventually defendant and A.D.'s mother began a sexual relationship. Defendant professed to be an amateur photographer, showing A.D. and her mother various photographs that he had taken. According to A.D.'s mother, it was defendant who offered to photograph A.D. Defendant took several photographs of A.D., photographs which eventually formed the basis of counts one through four of the indictment. A.D.'s mother testified that it was always defendant who directed A.D. how to pose and that on occasion he would even buy A.D. lingerie to wear during the photo shoots.

A.D. and her mother both testified that at one point during a shoot, A.D. took her panties off at the request of defendant. A.D. testified that another time defendant told her to lose her bra because it looked "stupid." Many of the photographs entered into evidence depict A.D. topless and without panties, however in none are her bare breasts completely showing. On another occasion, defendant took photographs of both A.D. and her mother together. Defendant compiled all of the photographs in a binder.

A.D.'s mother testified that on Palm Sunday, 2005, defendant asked if he could take more photographs of A.D. When she refused to allow it, defendant became angry. On another occasion, A.D.'s sister saw her mother and A.D. showing off some of the photos taken by defendant. She told her mother that she "didn't think it was right" the way A.D. was posing.

A.D.'s stepmother testified that she was "shocked" by the photographs she saw of A.D. topless. She immediately brought the matter to the attention of A.D.'s father. He saw the photographs and contacted the Division of Youth and Family Services, which in turn referred the matter to the Middlesex County Prosecutor's Office. About one month later, the Prosecutor's Office received a second referral from the Division. This one was regarding defendant's stepson B.D. B.D. alleged that defendant sexually abused him approximately eight years earlier when he was a minor.

Defendant testified at the first trial that it was A.D.'s mother who asked him to take photographs of her daughter after he had shown her some photographs he had taken of his own daughter. According to defendant, A.D.'s mother was hoping to use the photographs to persuade A.D. to lose weight. A.D. was anxious about having her picture taken because she wanted to be a model. Defendant testified that he never claimed to be a professional photographer, although he did own professional equipment. He denied ever having bought A.D. lingerie.

Defendant testified that the photographs in no way sexually excited him and that he never told A.D. to touch her breasts during the shoots, except to cover them. He did admit that on one occasion A.D. came out topless and he did tell her to cover up. He denied that A.D.'s vagina was ever exposed. Defendant testified that he never kept any of the photographs or any computer discs of the photographs.

Sometime after the final photo shoot, defendant and A.D.'s mother began a sexual relationship. During their sexual encounters, defendant took photographs at the request of A.D.'s mother.

ALLEGATIONS CONCERNING B.D.

B.D. testified at the first trial that he was nine-years old when his mother married defendant. Defendant began engaging in sexual touching, and then intercourse, with him when he was fourteen years old until he was seventeen years old. According to B.D., on one or two occasions defendant would take photographs of him when he was nude and erect. Defendant would direct B.D. how to pose before each photograph, such as telling him to look a certain way or to place his hand on his penis. B.D. said that defendant never took photographs of him while they were engaged in sexual activity.

At the second trial, Middlesex County Prosecutor's Investigator Raj Chopra testified that in May 2005, defendant was under investigation by his office. However, he did not testify as to why or the nature of the other allegations. Chopra said that his office received a referral from Woodbridge Police that defendant had sexually abused B.D.

B.D.'s girlfriend testified for the State at the second trial. According to her, B.D. confided in her during their relationship that defendant had sexually abused him. B.D. disclosed this information to her almost six years prior to trial, but she did not tell the police or anyone else because she was afraid of defendant. She could not recall any details of the allegations.

B.D. testified at the second trial. He explained how he lived with defendant and while growing up defendant acted as the father-figure in the home. B.D. described how defendant treated him like an outcast, throwing him out of the house every day "to play with [his] friends." He said "it was like [defendant and B.D.'s mother] wanted nothing to do with [him]."

According to B.D., the first incident was when defendant and B.D.'s mother approached him. They told B.D. that defendant was going to teach B.D. how to use a condom. According to B.D., defendant told him to get naked and then masturbated him. B.D. and defendant then performed oral sex on one another. B.D. testified that he never told anyone about what happened because he was scared of defendant and was afraid no one would believe him.

B.D. described a number of subsequent sexual encounters between him and defendant, including oral and anal penetration. The abuse stopped when he was seventeen. B.D. explained that the only people who he told were his sister, who died in 2001, and his girlfriend. He did not tell the police until May or June, 2005, when he learned that there was an investigation of defendant regarding the abuse of A.D.

Anthony D'Urso, Ph.D., an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS) testified for the State. He opined that B.D. likely waited so long to come forward because he was suffering from symptoms of CSAAS. He testified as to the specifics of CSAAS. He had not interviewed B.D.

Defendant testified at the second trial consistently with his testimony at the first trial. Defendant's wife and several character witnesses testified for the defense.

THE FIRST APPEAL

On appeal from the first trial convictions (A-3688-06T2), defendant raises the following contention:

THE TRIAL JUDGE ABUSED HIS DISCRETION IN REFUSING TO SEVER THE COUNTS OF THE INDICTMENT RELATING TO A.D. FROM THE COUNTS RELATING TO B.D., THEREBY DENYING DEFENDANT A FAIR TRIAL.

We agree.

A trial court's decision not to sever counts of a single indictment is a discretionary one "and we defer to that decision absent an abuse of discretion." State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999). "Denial of such a motion will not be reversed in the absence of a clear showing of a mistaken exercise of discretion." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

Rule 3:7-6 permits the joinder of two or more offenses in a single indictment when the offenses "are of the same or similar character or are based on the same act or transaction" or are part of a continuing scheme. A defendant may seek severance when joinder is potentially prejudicial. R. 3:15-2(b). Because of the highly prejudicial nature of other-crimes or wrongs evidence, a court should not take such a motion lightly. State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967).

A "key factor" in determining whether joinder of two or more offenses in a single trial is prejudicial is "whether the evidence of those other acts would be admissible in separate trials under N.J.R.E. 404(b)." Krivacska, supra, 341 N.J. Super. at 38 (quoting State v. Moore, 113 N.J. 239, 274 (1988)). So posited, the issue becomes whether the alleged offenses against B.D. were admissible at the first trial for the alleged offenses against A.D.

N.J.R.E. 404(b) provides, in relevant part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b).]

The rule is one of exclusion, rather than inclusion. State v. Nance, 148 N.J. 376, 386 (1997). As such, courts should exclude such evidence when offered simply to show a defendant has a propensity to commit criminal acts or is generally a bad person. Krivacska, supra, 341 N.J. Super. at 39.

By its very terms, the rule permits use of this evidence if offered for a particular purpose, those being: "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident . . . ." N.J.R.E. 404(b). "Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue especially where the prosecution's access to significant information is limited." Krivacska, supra, 341 N.J. Super. at 39.

In State v. Cofield, the Supreme Court adopted a four-prong test to "avoid the over-use of extrinsic evidence of other crimes or wrongs[.]" 127 N.J. 328, 338 (1992). To be admissible, the evidence must be: "(1) admissible as relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value not to be outweighed by its apparent prejudice." Krivacska, supra, 341 N.J. Super. at 39-40 (citing Cofield, supra, 127 N.J. at 338). The first factor requires an inquiry into "the purpose for which the other-crimes evidence was being offered." Cofield, supra, 127 N.J. at 339. In addition to a permissible purpose, the parties must dispute the issue. Id. at 338-39.

In this case, defendant was charged with three counts of endangering the welfare of a child. Accordingly, at trial, the State had to prove, among other things, that A.D. was a minor engaged in "sexual conduct which would impair or debauch" her morals, N.J.S.A. 2C:24-4a (count three), and that defendant caused or permitted a child to engage in a "prohibited sexual act." N.J.S.A. 2C:24-4b (counts one and two). The "sexual conduct" and "prohibited sexual act" that the State alleged was nudity, which is "prohibited sexual conduct[,]" when "depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction[.]" N.J.S.A. 2C:24-4b(1)(i).

Defendant's purpose in taking the photographs of A.D. was therefore relevant to a material issue, i.e., whether defendant's purpose in taking the photographs was for sexual stimulation or gratification. Purpose was also a genuinely disputed issue at trial, as defendant admitted to taking all of the photographs of A.D., but that he did so at her mother's direction and not for any sexual gratification. The State argued that he took the photographs for sexual stimulation and gratification. Therefore, because the issue of defendant's purpose was material and genuinely disputed, the first Cofield prong is satisfied.

The second Cofield prong requires that the other-crimes evidence be "similar in kind and reasonably close in time to the offense charged . . . ." Cofield, supra, 127 N.J. at 338. This prong strongly favors the defendant for two reasons.

First, the two different crimes are not similar in kind. The Grand Jury indicted defendant for endangering the welfare of A.D. by photographing her in the nude; the alleged crimes against B.D. in the indictment were first- and second-degree sexual assault. The former did not involve physical contact, while the latter did, making the testimony much more inflammatory. Moreover, here the two alleged victims were of different sexes, a fact which further separates these series of alleged offenses from one another. See State v. Covell, 157 N.J. 554, 567 (1999) (noting "similarity in kind" under Cofield where both victims were young girls).

Second, the two series of events are not reasonably close in time to one another. The alleged offenses against A.D. took place between October 2004 and May 2005, some eight years after the alleged incidents took place against B.D. This delay is significantly longer that those cases where courts have found the second Cofield factor to be satisfied. See id. at 567, 570 (16 months was reasonably close in time); Nance, supra, 148 N.J. at 389-90 (6 or 7 months); State v. Stevens, 115 N.J. 289, 295-96 (1989) (2.5 years); State v. Ramseur, 106 N.J. 123, 266 (1987) (1.5 years); State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998) (23 days), aff'd o.b., 162 N.J. 27 (1999).

As to the third Cofield factor, that the other evidence be clear and convincing, Cofield, supra, 127 N.J. at 338, we find that B.D.'s testimony, although somewhat vague and uncorroborated, is sufficient to satisfy this standard.

The fourth and final prong requires a finding that the probative value of the evidence is not outweighed by its apparent prejudice. Ibid. This prong strongly favors defendant.

First, as noted above, the lengthy span of eight years in between the two alleged series of events diminishes the probative value of the earlier one. See Ramseur, supra, 106 N.J. at 266 ("The temporal remoteness of a past wrong affects its probative value."). Second, the alleged offenses against B.D. were of the most serious variety, including first-degree aggravated sexual assault. The charges relating to A.D., while no doubt serious, were not as inflammatory as the ones relating to B.D. B.D.'s testimony clearly had the effect of inflaming the jury, especially in light of the abhorrent nature of the charges alleged.

In our view, the prejudice in this case was overwhelming and by all means sufficient to question the validity of the first jury's verdict. The prejudice in this case is similar to that in State v. Orlando, where we said:

[I]n reality, although the jury was told to consider each count separately, the effect of the joinder was to give the State two witnesses instead of one to overcome defendant's denial of either offense and, in view of the abhorrent nature of the offense, to multiply the chances that defendant would be convicted. Further, the prejudice to be anticipated from joint trial of the two offenses was confirmed by what in fact did occur at the trial.

[ 101 N.J. Super. 390, 394 (App. Div.), certif. denied, 52 N.J. 500 (1968).]

While factors one and three of the Cofield analysis favor the State, the differences between the two alleged offenses, the eight years that separate the two alleged offenses and the overwhelming prejudice defendant faced in the first trial clearly mandated severance of the charges. We therefore reverse defendant's convictions on counts one, two, three and four.

Defendant also contends:

DEFENDANT WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT TO A FAIR GRAND JURY PROCESS.

This point is closely related to the joinder issue. Defendant argues that the charges concerning A.D. and B.D. should not have been presented to the same Grand Jury and he suffered unfair prejudice thereby. However, Rule. 3:7-6 provides that the relief available to defendant when joinder is prejudicial is to move to sever the counts and seek separate trials pursuant to Rule. 3:15-2, not to challenge the indictment itself. Here defendant moved for severance of counts and was denied. Thus, he pursued the correct method of attacking the prejudicial joinder. We are reversing his convictions. He is not entitled to additional relief.

Defendant also argues in A-3688-06T2:

BECAUSE THE CHILD-ENDANGERMENT STATUTE, N.J.S.A. 2C:24-4, DOES NOT PROVIDE SUFFICIENT WARNING THAT THE ACTS DEFENDANT PERFORMED WERE PROHIBITED, THE STATUTE IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO DEFENDANT (PARTIALLY RAISED BELOW).

We disagree. Defendant argues that the statute "does not, with sufficient clarity, prohibit someone from photographing a partially clothed minor . . ." and that it does not provide adequate notice that doing so is criminal. The crux of his argument hinges on the term "nudity." Defendant partially raised this argument at trial. In a pretrial motion, defendant sought a "dismissal of the indictment on the grounds that the conduct set forth does not constitute a crime." Although this is not specifically couched as a constitutional challenge, such as void-for-vagueness as applied, the motion is sufficient to consider the argument "raised below." We reject the State's contrary position.

The issue presents a question of law, therefore, we review it de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

When considering whether a criminal statute is vague as applied, "we accept as true the State's evidence concerning defendant's actions, viewing that evidence in the light most beneficial to the State's position . . . ." State v. Afanador, 134 N.J. 162, 165 (1993). Therefore, the only question is "whether the statute clearly extends to the acts that the State alleges defendant committed." Ibid. See also id. at 175 ("An as-applied challenge alleges that a statute 'does not with sufficient clarity prohibit the conduct against which it is sought to be enforced'") (quoting State v. Cameron, 100 N.J. 586, 593 (1985)).

The indictment charged defendant with violating three provisions of N.J.S.A. 2C:24-4. They are, in pertinent part:

a. Any person . . . who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the . . . third degree. [Count Three]

b. . . . (3) A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet . . . [Count One]

(4) Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree. . . . [Count Two]

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

Thus, nudity, "if depicted for the purpose of sexual stimulation or gratification[,]" satisfies the statute. N.J.S.A. 2C:24-4b(1)(i).

The statute clearly applies to defendant's actions as alleged by the State. As to Count One, the State alleged that defendant caused A.D. to engage in a prohibited sexual act, i.e. nudity, knowing the act may be photographed. Whether or not defendant had a purpose of sexual stimulation is a question for the jury. Contrary to defendant's argument, the statute does not focus on the end result, i.e. whether the minor was nude in the final picture, but whether defendant caused the child to be nude for a particular purpose knowing the nudity may be photographed. Defendant's assertion that A.D. was not really nude because she was partially clothed is unconvincing. Nudity need not be complete nudity. See State v. Vogt, 341 N.J. Super. 407, 415-16 (App. Div. 2001) (holding an ordinance prohibiting "nudity" not unconstitutionally vague as applied to a partially nude woman). And as defendant admits, "[w]ords in a statute . . . carry their ordinary and well-understood meanings[.]"). See Vogt, supra, 341 N.J. Super. at 415 (finding the plain, dictionary meaning of nudity to be "inadequately or partially clothed esp. so as to be socially unacceptable" (quoting Webster's International Dictionary 1500 (3rd ed. 1981)).

As to Count Two, the State had to prove defendant photographed a child engaged in a "sexually prohibited act," i.e. nudity. Defendant conceded at trial he took such photographs and the question for the jury was whether he did so for the prohibited purpose of sexual stimulation or gratification. As the State points out, the statute is not unconstitutional because defendant miscalculated the definition of "nudity" set by N.J.S.A. 2C:24-4.

We conclude that any reasonable person would know that causing a child to be nude in such a way was prohibited by the statute, as was photographing the child in said position. The same is true of Count Three, which prohibits a defendant from engaging in sexual conduct which would impair the child's morals. Causing a minor to undress for a camera, or taking pictures for a sexual purpose is sexual conduct, which would impair the morals of the child. Thus the statute clearly advises what conduct is prohibited. It is not unconstitutional.

Defendant also contends:

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE [N.J.R.E.] 404(B) EVIDENCE WITHIN THE CONTEXT OF THIS CASE.

BECAUSE THE MITIGATING FACTORS FAR OUTWEIGHED THE AGGRAVATING FACTORS IN THIS CASE, AND BECAUSE A DOWNGRADED SENTENCE WOULD HAVE BEEN IN THE INTEREST OF JUSTICE, THE TRIAL JUDGE SHOULD HAVE SENTENCED DEFENDANT AS A THIRD DEGREE OFFENDER.

Given our decision to reverse on the basis of defendant's first argument, we need not address these contentions.

THE SECOND APPEAL

On appeal from the second trial convictions (A-5182-06T2), defendant contends:

THE COURT'S FRESH COMPLAINT INSTRUCTION TO THE JURY WAS ERRONEOUS, THEREBY DENYING DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW (NOT RAISED BELOW).

We agree.

To qualify as fresh-complaint evidence, "the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." State v. Hill, 121 N.J. 150, 163 (1990); State v. Williams, 377 N.J. Super. 130, 151 (App. Div.), certif. denied, 185 N.J. 297 (2005). The rule's purpose is "to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime." Williams, supra, 377 N.J. Super. at 151 (quoting State v. Bethune, 121 N.J. 137, 146 (1990)). The rule is narrow and only "allows the State to negate the inference that the victim was not sexually assaulted because of [his or] her silence." Hill, supra, 121 N.J. at 163.

Most important to this case, the jury may not use fresh-complaint evidence to advance the victim's credibility. Bethune, supra, 121 N.J. at 148. With this in mind, the jury charge is especially important: "The charge should inform the jury that the sole purpose of fresh-complaint evidence is to counter any inference that might be drawn that the alleged victim's behavior was inconsistent with a claim of sexual abuse." Williams, supra, 377 N.J. Super. at 151. The Supreme Court has instructed:

Trial courts should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case. The trial court should make clear that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent.

[Ibid. (quoting Bethune, supra, 121 N.J. at 148).]

During the jury instructions, the trial court failed to instruct the jury at all regarding the permissible and impermissible uses of the testimony by B.D.'s girlfriend. The jury then deliberated for a day and a half without any guidance on this critical issue. Then, only after the jurors asked the court for a definition of "fresh complaint," did the judge instruct the jury as follows:

One . . . exception[] to the hearsay rule falls, actually a few of those exceptions to the hearsay rule falls under the concept that we call fresh complaint.

In this particular case that doctrine simply means that as an exception to the Hearsay Rule a jury, in this case you, would be allowed to hear about a prior statement of [B.D.] if it was made to someone that he would ordinarily confide in as a close confidant after the acts of alleged sexual abuse.

. . .

But in this exception to the hearsay rule, known as fresh complaint, you would be allowed to hear a statement allegedly made by [B.D.] to someone that he would have confided in at the time.

Now, it is very important for you to understand that, and this is what I should have made clear to you at the outset, is that that statement made previously by [B.D.] is one of these items of evidence that can only be admitted for a limited purpose, okay, and I've told you about limited purpose evidence before.

The prior statement of [B.D.] that was allegedly made to [C.B.] in this case . . ., those statements can only be considered by you for the purpose of countering or addressing allegations that [B.D.] recently made up this allegation of sexual abuse. So, those earlier statements can only be used so that you can further evaluate his testimony and credibility, but those statements cannot be considered proof that the sexual abuse did or did not occur . . . .

[Y]ou may consider that testimony and that evidence only for the purpose of evaluating [B.D.]'s credibility and from, and for evaluating these charges now that he recently made up these allegations.

You cannot consider the previous statements as definitive proof of whether the sexual abuse did or did not occur . . . .

[T]hese previous statements made by [B.D.] are one factor you must consider in evaluating his credibility, but keep in mind all the other factors that I previously referred you to [earlier] . . . . When you evaluate [B.D.]'s credibility you have to evaluate all of the factors that I have previously given you together with this issue of so-called fresh complaint.

This instruction was erroneous and amounts to plain error. The initial failure to instruct the jury on fresh complaint left the jury unguided with respect to the purpose of the testimony by B.D.'s girlfriend, which, as the cases cited above make clear, is a very narrow one. Then, when the court finally did instruct the jury, its instruction was both erroneous and confusing. The judge told the jury four times that it may (and in some cases must) consider the fresh-complaint testimony to evaluate B.D.'s credibility. This instruction fostered, rather than suppressed, the harm such instructions are designed to prevent.

This case is similar to State v. Williams, where the trial court instructed the jury that it could use fresh-complaint evidence to evaluate the victim's credibility. Williams, supra, 377 N.J. Super. at 152. We found the error to be plain, concluding:

[T]he fresh complaint charge referencing an evaluation of the credibility of the witness essentially taints the overall charge, thereby, confusing the purpose for which the fresh complaint testimony may be used. The last sentence of the fresh complaint charge here told the jury that the fresh complaint could be used by them in evaluating the victims' credibility. The jury could have focused its attention, therefore, on that particular part of the court's instruction . . . .

[W]e are convinced that the trial court's issuance of []conflicting fresh-complaint charges to the jury constitutes plain error requiring reversal because of the clear capacity of the jury to arrive at an improper decision and, thus, an unjust result.

[Id. at 153.]

The same is true here. Because the erroneous fresh-complaint instruction was "clearly capable of producing an unjust result," R. 2:10-2, we reverse defendant's convictions on counts five and six.

Defendant also argues in A-5182-06T2:

THE UNNECESSARY ADMISSION OF TESTIMONY THAT DEFENDANT WAS BEING INVESTIGATED BY MIDDLESEX COUNTY'S SEX CRIMES CHILD ABUSE UNIT IN AN UNRELATED MATTER VIOLATED N.J.R.E. 404(B) AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

We disagree. Defendant contends that testimony regarding him being under investigation by the MCPO deprived him of his right to a fair trial. He focuses on the testimony of Chopra and B.D. to the effect that there was an investigation on defendant in process. We note that immediately following Chopra's testimony the judge gave a limiting instruction the jury.

Defendant relies on N.J.R.E. 404(b), which, prohibits evidence of other crimes or wrongs unless offered for a specific, enumerated purpose. State v. Weeks, 107 N.J. 396, 406 (1987) ("A short version of the rule is that it is not competent to prove one crime by proving another.").

Defendant is correct that the two references to defendant being under investigation by the county Prosecutor a month prior to the B.D. referral should not have been admitted. However, we conclude that this error, by itself, would be harmless because the reference was short and did not go into any specifics about the charges. At the retrial such evidence must be avoided.

Defendant also contends:

THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM IMPEACHING THE VICTIM WITH HIS COURT-MARTIAL WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.

We disagree. The relevant evidence rule provides:

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

[N.J.R.E. 609.]

As the State correctly points out, defendant's argument fails on the final portion of the Rule, which essentially requires some sort of competent evidence of the previous conviction of a crime. In the Supreme Court's 1991 Committee Comment on the rule, the Committee states: "With respect to the mode of proof of prior convictions, Fed. R. Evid. 609(a) expressly requires proof by way of public record or admission by the witness." Biunno, supra, at 1991 Supreme Court Committee Comment on N.J.R.E. 609.

Here, defendant put forth nothing that indicated B.D. had ever even been court-martialed, let alone convicted. The only evidence presented to the judge on the issue was defense counsel's speculation. The Assistant Prosecutor represented to the trial court that B.D. had never been court-martialed or convicted or any crime. Defendant produced no competent evidence here of a prior conviction of B.D.

Defendant also contends:

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED ASSAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

Given our decision to reverse defendant's convictions on counts five and six on the basis of the improper fresh-complaint instruction, we need not address these remaining contentions.

All convictions are reversed and the matters are remanded for new trials.

N.J.S.A. 2C:7-1 to -19.

(continued)

(continued)

26

A-5182-06T2

RECORD IMPOUNDED

August 15, 2008