STATE OF NEW JERSEY v. M.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3888-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

M.DV.,

Defendant-Appellant.

__________________________________

February 10, 2011

Submitted: November 4, 2010 - Decided:

Before Judges Cuff, Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-03-0393.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Hussain Abbasi, Designated Counsel, of counsel and on the brief).

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of lewdness, N.J.S.A. 2C:14-4, a disorderly persons offense (Count One);1 and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two). After merging Count One with Count Two, Judge Reddin imposed a four and one-half year term of imprisonment. The appropriate fines, penalties and assessments were also imposed.

In November 2000, R.B. was eleven years old and lived with his brother, his mother, I.G., and her fiancé, Angel.2 Defendant M.DV. is Angel's adult brother, who visited the family often.

At that time, I.G. was concerned about her son, R.B. As an eight year old, he had been sexually assaulted by his maternal uncle. She worried that the experience might influence R.B.'s sexual orientation. She confided this concern to defendant during a conversation in November 2000 because she knew defendant was openly homosexual. She told defendant about her son's sexual assault and asked about the consequences. I.G. also told defendant about gifts she wanted to buy for her sons but could not afford. Both I.G. and R.B. characterized defendant as a good friend of I.G.'s.

A week after their conversation, defendant had dinner at I.G. and Angel DV's home. When defendant was leaving, I.G. had already cleaned-up and gone to bed. Defendant pretended to leave the home, but entered the room R.B. shared with his brother. Both boys were asleep. Defendant awakened R.B., asked if he wanted a GameBoy, and offered to get him one if the boy would masturbate defendant. Defendant assured R.B. that he was doing nothing wrong and that being gay was not bad. R.B. testified he did as defendant asked. Defendant told R.B. not to tell anyone about what happened if he wanted the GameBoy.

The next day, I.G. awoke believing "something wasn't right." Because of this feeling, she woke R.B. and questioned him. When her other son awoke, he told I.G. that he had seen defendant in the room during the night. I.G. questioned R.B. again. R.B. was unresponsive; therefore, Angel took him for a ride. While they were out of the house, I.G. questioned her other son. He told her that defendant had been in the room by the bunk bed, and the bed moved.

During the ride, Angel asked R.B. if anything had happened. R.B. told Angel "[defendant] asked me to jerk him for the Game Boy." R.B. did not tell Angel that he had, in fact, done so because he felt embarrassed. When they returned to the house, Angel told R.B. to tell I.G. what he had told him, and R.B. did so.

Angel, I.G., and R.B. then went to look for defendant. They found him at his workplace, where I.G. questioned him. Defendant denied their accusations but R.B. confronted him. I.G. wanted to report the incident, but R.B. implored her not to because he was embarrassed and "didn't want to go through any of this commotion again."

I.G. testified she had further conversations with defendant. Defendant claimed R.B. had prostituted himself for the GameBoy. I.G. also recounted that defendant threatened to tell the authorities that I.G. had encouraged her son to prostitute himself.

The incident remained unreported for a year. I.G. finally reported the incident to a counselor, when R.B.'s behavior in school deteriorated. She then reported the incident to the Division of Youth and Family Services (DYFS) and met with prosecutors. Defendant was arrested and indicted.

On appeal, defendant raises the following arguments:

POINT I.

THE TRIAL COURT ERRED IN ADMITTING THE STATEMENT OF [I.G.] CONCERNING CONVERSATIONS WITH [R.B.] AS THE QUESTIONS POSED BY [I.G.] REGARDING THE ALLEGED SEXUAL CONTACT WITH DEFENDANT WERE COERCIVE AND SUGGESTIVE OF SEXUAL ABUSE BY DEFENDANT AND THEREFORE NOT RELIABLE.

POINT II.

THE TRIAL COURT ERRED IN ADMITTING [THE] STATEMENT BY [I.G.] THAT DEFENDANT WAS GAY EVEN THOUGH SUCH TESTIMONY WAS HIGHLY PREJUDICIAL TO DEFENDANT.

POINT III.

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL AS THE STATEMENT BY ANGEL [] THAT DEFENDANT THREATENED [I.G.] WITH A GUN WAS HIGHLY PREJUDICIAL TO DEFENDANT AND THE TAINT CAUSED BY THIS STATEMENT COULD NOT BE CURED BY A CURATIVE INSTRUCTION TO THE JURY.

POINT IV.

THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION OF LEWDNESS AND ENDANGERING THE WELFARE OF A CHILD WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

The trial judge conducted a pretrial evidentiary hearing because the victim had been sexually assaulted on a prior occasion, and the mother's statement raised questions about whether the nature of the questions and the extent of the questioning may have been suggestive. In doing so, the trial judge relied on State v. Michaels, 136 N.J. 299 (1994) and State v. Marczak, 344 N.J. Super. 388 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

During this hearing, the victim, his mother, and Angel testified. The victim's mother acknowledged she informed police that she questioned her son for over an hour and repeated the same questions during that period. At the hearing, however, she estimated that she questioned her son for significantly less time, perhaps as little as five to ten minutes, before Angel took the victim for a ride.

Although defendant argued then and reiterates on appeal that I.G.'s time estimate in her initial statement to police is more credible and must be considered coercive and suggestive, the trial judge found to the contrary. He found the victim's age in this case, eleven years, presented a factually distinguishable situation than in State v. Michaels. He found there is a significant difference between a child of three or five years old and an eleven year old boy. He also found the victim's mother very credible. The mother testified she was very upset when she first spoke to police. The judge accepted her explanation for the discrepancy about the length of time she questioned her son between her initial statement to the police and her testimony. The judge also found the questions posed by the victim's mother were neither suggestive nor coercive or leading.

The judge also found Angel very credible. The judge accepted that he simply asked the victim what happened a couple of times. He accepted Angel's statement that he could not ask a suggestive question because he did not know what had happened. The judge found nothing improper in these questions.

Finally, the judge found that the victim was an intelligent young man. The judge believed the victim's testimony that "no one put words in his mouth, no one threatened him, that he did [not] tell his mother at first [] because he was embarrassed . . . ."

N.J.R.E. 403 specifically grants a judge discretion to exclude otherwise admissible evidence under specified circumstances. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). "These decisions are reviewed under the abuse of discretion standard." Ibid. (citing State v. Erazo, 126 N.J. 112, 131 (1991)). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). See also Biunno, Current N.J. Rules of Evidence, Comment 1 on N.J.R.E. 403 (2010) ("The burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control.").

Although Michaels, supra, involved police interrogation techniques of pre-school children, the ruling provides significant guidance in any case in which a child is questioned by any person about a report of sexual misconduct. The Court identified relevant academic and legal studies of child sex abuse victims which recognize a child's susceptibility to influence through suggestive or coercive questions. 136 N.J. at 309-12.

In Michaels, the Court identified several techniques employed in questioning the alleged pre-school victims that were coercive, unduly suggestive, and impaired the reliability of the information obtained from the children. These techniques included a lack of impartiality by the questioner, use of leading questions, suggestion, excessive re-interviews, mild threats, cajoling, bribes, and vilification of the accused schoolteacher. Id. at 313-15. The Court also noted the responsibility of the trial judge to ensure "that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact." Id. at 316.

The determination of reliability of pretrial statements must take into account all relevant circumstances, especially in cases of child sexual abuse. Those circumstances include:

(1) the person to whom the child made the statement; (2) whether the statement was made under conditions likely to elicit truthfulness; (3) whether the child's recitation exhibits unusual or above-age-level familiarity with sex or sexual functions; (4) post-event and post-recitation distress; (5) any physical evidence of abuse; and (6) any congruity between a defendant's confession or statement.

[Id. at 317-18.]

This standard is also reflected in N.J.R.E. 803(c)(27), which provides:

A statement 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) . . . (i) the child testifies at the proceeding . . . .

Applying these factors to this case, we hold that the trial judge properly admitted R.B.'s statements about defendant's conduct. I.G. never asked her son whether defendant had touched him or sexually assaulted him. She confined her questions to asking him "if there was something wrong" or "if there was something wrong happening to him," even after her other son told her that he had seen defendant in their room by the victim's bed during the night. Similarly, Angel testified that "I didn't want to hit him hard"; therefore, "I just asked him if anything happened." In fact, he denied that he ever mentioned defendant's name. There is nothing suggestive or leading or coercive about these questions. Moreover, when he returned from the car ride with Angel, R.B. disclosed the encounter with defendant. In doing so, Angel instructed R.B. to "tell your mother what you told me." There was nothing leading or suggestive or coercive about this direction.

Defendant also challenges the admission of testimony of his sexual orientation and a statement that he threatened R.B.'s mother with a gun. He contends these two statements caused undue prejudice. Defendant also contends that the trial judge should have granted his motion for mistrial when I.G. revealed that defendant had threatened her. We disagree.

Relevant evidence may be excluded if its probative value is substantially outweighed by the risk that it will cause undue prejudice. N.J.R.E. 403(a). The factors favoring exclusion must be shown to substantially outweigh the probative value of the contested evidence. Morton, supra, 155 N.J. at 453. The party challenging inclusion of evidence has a difficult burden under N.J.R.E. 403. "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.) (citing Morton, supra, 155 N.J. at 453-54), certif. denied, 165 N.J. 492 (2000). Thus, evidence claimed to be prejudicial can only be excluded if its probative value "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the case. State v. Thompson, 59 N.J. 396, 421 (1971).

Defendant argues information pertaining to his sexual orientation was prejudicial. At a pretrial hearing, defense counsel conceded he had no problem "if the victim wants to testify [defendant said 'masturbate me' and 'it's ok to be gay']" because defense counsel was not objecting to what the victim claims happened in the room on the night of the incident. Defense counsel planned to challenge this testimony and prove the incident never occurred. Defendant did object to any statements by I.G. and Angel that defendant led a gay lifestyle.

In response to questions posed by the trial judge, the prosecutor explained the information relating to defendant's sexuality would serve a two-fold purpose. First, the conversation between defendant and I.G. related to motive and opportunity because it would show defendant knew R.B. was vulnerable. Second, the conversation would also help corroborate R.B.'s account of the incident where he testified defendant said "it's ok to be gay." Judge Reddin allowed the statements because they were inextricably related to the preceding conversation between defendant and R.B.'s mother and defendant's encounter with R.B. In short, the statements went to the heart of the State's case by demonstrating opportunity and supporting R.B.'s credibility.

On the other hand, the judge recognized the prejudicial tendency of I.G.'s statement that defendant threatened her with a gun. The judge described the statement as "[defendant] said, purportedly, if anyone as much as came near his house, including the authorities, he had a gun." He ruled that the statement was unduly prejudicial and barred its admission. Despite this ruling, Angel mentioned the gun during cross-examination. Defense counsel was examining whether defendant threatened I.G. with calling DYFS and accusing R.B. of prostitution when he asked the following question:

Q. You were telling us how she told you about these threats. What did she tell you?

Angel responded:

A. Well, she had told me that my brother called and threatened her in a way with a gun and in that sense I don't know how --

Q. Objection.

Judge Reddin sustained the objection and removed the jury from the court room.

Defense counsel moved for a mistrial. The judge denied the motion stating he believed a curative instruction would correct the problem. When the jury returned, Judge Reddin issued the following curative instruction:

Okay. Ladies and gentlemen, first, I sustained the objection, and I'm instructing you to totally disregard anything that this witness said about the fact that the Defendant made any type of threat involving the use of a gun.

There was never a complaint filed against the Defendant for threatening to use a gun and it has no basis or reason to be in this case. You are to disregard it as if it was never said.

At the conclusion of that day's testimony, defense counsel indicated that he would not request another curative instruction during the formal charge because it might draw attention to the issue.

The decision to grant or deny a motion for a mistrial is addressed to the discretion of the trial judge. State v. Winter, 96 N.J. 640, 647 (1984). The trial judge "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Ibid. Denial of a motion for mistrial is reviewable under the abuse of discretion standard. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Unless the taint is plainly "ineradicable by an instruction to the jury, a mistrial is not allowable of right." Ibid.

In State v. LaPorte, 62 N.J. 312 (1973), a witness for the State revealed that the defendant, who was on trial for robbery, was wanted in another jurisdiction for another robbery. Id. at 317-18. The trial court denied the defendant's motion for a mistrial and issued a curative instruction. Id. at 318. In upholding the trial court's denial of the motion, the Court found the error insufficient to warrant a new trial, noting that when an error "is not of constitutional dimensions, it shall be disregarded by the appellate court 'unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .'" Id. at 318-19 (quoting R. 2:10-2). The Court also noted the trial judge immediately issued the curative instruction. Id. at 318. The Court also noted the evidence of guilt was very strong, and thus, the statement was inconsequential when considered in the context of the entire record. Ibid.

Here, Judge Reddin's curative instruction comported with the requirements prescribed in Laporte and Winter. In fact, this instruction was more pointed than the instruction in LaPorte. See LaPorte, supra, 62 N.J. at 318. The judge instructed the jury to totally disregard the statement and told the jury that the information has no basis in the case. The question posed by defense counsel was also sufficiently open-ended that Angel may have believed that his response was not improper. Moreover, viewing the record in its entirety, the evidence of defendant's guilt was strong.

Finally, defendant argues the four and one-half year term of imprisonment is manifestly excessive. We disagree. The aggravating factors found by the judge are supported by the record, the term imposed comports with the applicable law, and nothing about this sentence shocks our conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).

1 Defendant had originally been charged with second degree sexual assault in Count One.

2 I.G. and Angel married before the trial and he is variously referred to as I.G.'s fiancé and husband in the record.