STATE OF NEW JERSEY v. DONNA GOEBEL

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5626-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNA GOEBEL,

Defendant-Appellant.

__________________________________

May 1, 2012

Submitted February 7, 2012 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-06-0649.

Joseph E. Krakora, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Donna Goebel was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2c(3)(b). The trial judge sentenced her to five years imprisonment. After imposing the mandated fines, assessments, penalties and surcharges, the judge ordered that defendant "comply with all aspects of Megan's Law, [N.J.S.A. 2C:7-1 to -11], including parole supervision for life and registration as a sex offender." Defendant appeals, and we affirm.

These facts emerged at trial. In the fall of 2007, defendant, then forty-three years old, was a teaching assistant in A.B.'s tenth-grade health class at his school located in Westampton Township.

During the course of the school year, A.B., then sixteen years old, gave defendant his cell phone number during class after he noticed defendant staring at him. A.B. described that defendant was crouching down assisting him with his class work when he "felt [her] staring" at him. Defendant called A.B. that same day, first from a school phone and later from her cell phone. During one of those conversations, defendant asked A.B. where he lived. Later that day, she met A.B. down the street from his house. They sat in her car and talked.

Defendant and A.B. began speaking on their cell phones and texting each other every day. They also started "hanging out." Defendant would go to A.B.'s house and sit with him on a couch on the first floor while A.B.'s mother was home. In addition, defendant took A.B. on day trips to various locations, including Atlantic City.

Eventually, the relationship evolved to the point where A.B. and defendant had sexual relations. According to A.B., the first time they had sex, defendant came to his house, they went upstairs into his bedroom, took off their own clothes and had sexual intercourse. A.B. explained that he ejaculated into a shirt. A.B. estimated that he and defendant remained upstairs in his bedroom for approximately two to three hours. During this time, his mother was "in the back of the house."

The following day, while A.B.'s mother was in the house, defendant and A.B. had sexual intercourse in A.B.'s bedroom again. A.B.'s mother had met defendant and knew she was one of A.B.'s teachers; however, she did not know that defendant visited A.B.'s bedroom. A.B. claimed he and defendant had sex "[a]bout two or three" times total. To initiate these encounters, defendant would call or text him and ask if he was busy; if he was not, defendant would ask if she could come over.

In addition to "riding around" in defendant's car, A.B. visited defendant's house. A.B. went to defendant's home approximately two to three times. A.B.'s twin brother corroborated that he accompanied A.B. one time. On one occasion, A.B. slept in defendant's bed with her; however, they did not have sex at that time. A.B. referred to defendant as "babe," and defendant referred to A.B. as "baby." Defendant also bought A.B. his driving permit and clothing. Defendant also took photos of A.B. in her bedroom and in the shower.

The relationship between A.B. and defendant was all-consuming. They would typically start texting between 7:00 a.m. and 7:15 a.m., when defendant would text to see if A.B. was awake. If it was a school day, A.B. would receive the first text, then they would wait until they were able to speak in school. On days when school was not in session, the first text would start a texting conversation that would go "on and off" throughout the day. For example, in one message, A.B. asked if he could go to defendant's home. Defendant responded, "[O]f course, baby," and inquired as to whether A.B. was hungry. Over the course of the "conversation," defendant stated that it mattered to her what A.B. liked. A.B. signed off on that communication by saying, "I love you." Defendant replied, "I love you too."

Similarly, in a text message exchange that occurred on February 1, 2008, defendant texted, "I still love u tho [sic]." A.B. responded, "Love u 2." On February 5, 2008, A.B. sent defendant a text message asking why she was not at work. In response, defendant texted, "I had some things 2 take care of, u miss me?" A.B. responded, "[O]f course." Again, defendant and A.B. ended the text message conversation by texting one another "I love u." Another text from defendant to A.B. said, "Just missin [sic] you."

A.B. explained that he did not want anyone to see defendant for fear that "people would start questioning [him]." When asked why he did not have sex with defendant when they were alone in defendant's house, A.B. explained he "didn't want to . . . [b]ecause [he] felt uncomfortable and [he] didn't want to do it." He expounded further, he did not like having sex with defendant "because of the age."

The clandestine relationship between defendant and A.B. was eventually discovered by defendant's husband. Her husband brought this inappropriate relationship to the attention of the Burlington Prosecutor's Office on January 24, 2008. On that date, Sergeant Darren Anderson of the Burlington County Prosecutor's Office, who oversaw the subsequent investigation of defendant, was advised by Detective David Kohler that defendant's husband had located a piece of paper that had a name on it, along with a cell phone number. Her husband provided this piece of paper to the Prosecutor's Office because of his suspicion that defendant and a student enrolled at the school where she worked were having an inappropriate relationship. The following day, January 25, 2008, her husband returned to the Burlington County Prosecutor's Office. At that time, the determination was made that no investigation was required, as it was "a domestic issue."

Two weeks later, defendant's husband went to the Westampton Police Department with additional information. Sergeant Anderson and Detective Kohler then determined it was necessary to follow up with defendant's husband and pursue an investigation of possible sexual assault. Also on February 6, 2008, Anderson received a phone call from of the Burlington County Prosecutor's Office advising that defendant had made an unscheduled, unsolicited visit to the prosecutor's office and had requested to speak with Kohler. Anderson went to the Westampton Police Station to speak with defendant's husband. Kohler, accompanied by Detective Robin Lindenmuth from the Burlington County Prosecutor's Office, spoke with defendant.

At the Westampton Police Station, defendant's husband provided Sergeant Anderson with items he had discovered at his residence earlier that day. These items consisted of three photographs taken with defendant's camera, of a male subject, later identified as A.B.; a memory card from a camera; and two CD-style discs that defendant's husband had made containing copies of the images stored on the memory card. Based upon the information provided by defendant's husband and gathered from the interview with defendant, Anderson determined that additional investigation was warranted.

That same evening, February 6, 2008, Detective Kohler, Sergeant Anderson and Patrolman Plowman of the Burlington City Police Department visited A.B. at his residence. During the visit, A.B.'s mother, V.B., was present. After the officers explained that they were investigating "some serious concerns that one of [A.B.'s] teachers and [A.B.] were involved in an inappropriate relationship," they were given permission to speak with A.B.

Based upon the officers' discussion with A.B. and the information he provided, A.B. gave a recorded statement at the Burlington City Police Department. A.B. agreed to participate in a third-party consensual intercept.

This third-party consensual intercept between defendant and A.B. was played for the jury. The telephone records demonstrated that, in January 2008, defendant and A.B. spoke and texted almost every day, for varying lengths of time, the longest conversation lasting close to an hour.

Subsequently, A.B. gave a statement to defense counsel, Mark Fury, claiming he did not have sexual intercourse with defendant. However, A.B. indicated at trial that he went to defense counsel's office and gave the statement "because [defendant] kept calling [his] cell phone and [his] mom telling [them] to go down there and lie to Mark Fury that nothing happened." A.B. did not tell Detective Kohler that he met with defense counsel because he didn't want the detective "to know that [defendant] was still keeping in contact" with him.

At defense counsel's office, A.B. "told him that nothing had happened" so that defendant "would leave [A.B] and his family alone." After A.B. signed an affidavit at counsel's office, defendant did in fact leave A.B. and his family alone. A.B. later indicated that statements contained in the document were not true. A.B. provided police with two photographs, both "head shots" that defendant had taken of him as well as a poem that A.B. had written for defendant and defendant had framed.

As part of defendant's trial testimony, she claimed that during the time in question she was in an abusive relationship with her husband. According to defendant, her husband was on "psychotic medications" and had been advised not to consume alcohol. Nonetheless, he had started to drink when their oldest daughter graduated high school, causing him to become "violent and delusional." Her husband attempted suicide three times; after his third attempt, in January 2008, defendant asked him to leave.

Defendant acknowledged that her relationship with A.B. "had nothing to do with the state of her marriage," but noted that she talked to him about what she "was dealing with at home." Furthermore, she noted that she became involved with A.B.'s family "[t]o take [her] out of the turmoil that [she] was in at home with [her husband]." Defendant's "involvement" with the family included taking A.B.'s sister to work and to a clinic after she became pregnant and providing bail money to assist A.B.'s older brother.

Though testifying that A.B. was like a boyfriend to her, defendant denied having sexual intercourse with A.B. When asked what she meant by calling A.B. "baby" and telling him "I love you," defendant testified that she said these things "[j]ust like I would say to a friend." Defendant acknowledged being inside A.B.'s home at least eight to ten times.

After reviewing text messages exchanged between defendant and A.B., defendant acknowledged that A.B. came to her house on January 31, 2008, with his twin brother. In addition, A.B. spent both Friday and Saturday night of Super Bowl weekend, February 1-3, 2008, at her residence while her daughters were out of town. On Saturday, defendant and A.B. went to Atlantic City. Upon their return that night, A.B. slept in defendant's bed with her.

On Saturday of that weekend, February 2, 2008, defendant who was with A.B. at her home, avoided her daughter's entreaties to return home, suggesting that the daughter stay at her boyfriend's residence instead of at home.

Regarding the consensual intercept, defendant denied telling A.B. what he should and should not tell the police but acknowledged that she tried to convince A.B. not to talk about sleeping in her bed. When confronted with her statement during the consensual intercept that she was not ashamed of "messing with" A.B., she indicated that she meant "playing with someone's head," not sex. Similarly, when confronted with statements she made to A.B. during the consensual intercept, wherein defendant acknowledged that A.B.'s being sixteen years old was okay but that she was concerned "because of where she worked" that she could go to jail, defendant replied, "I don't know the law, sir." Moreover, on cross-examination, when asked what she meant by asking A.B. if he had washed his sheets "since then," defendant replied, "I couldn't tell you." However, upon re-direct, defendant testified that this question "just generally referr[ed] to the last time [defendant] was at [A.B.'s] house."

Defendant claimed that she came to the Burlington County Prosecutor's Office on February 6, 2008, "[t]o talk about how crazy [her] husband was." Defendant knew her husband had been to the prosecutor's office and asked to speak to the person with whom her husband had spoken. While speaking with Detectives Kohler and Lindenmuth, defendant acknowledged she had not given them A.B.'s name or his cell phone number initially "because of [her] job." Similarly, when confronted with multiple inconsistencies in her statement and asked why she was not honest and forthcoming in her answers to the investigators, defendant stated she "was overwhelmed because [she] was there to talk about [her] husband" and that "was all that [she] wanted to talk about."

Though claiming she had no power over A.B., defendant acknowledged that, in her role as a teacher's assistant, she "wr[o]te [A.B.] and others up." Similarly, though her decision could be overruled by the teacher in the classroom, defendant had the power to take points away from students, a form of discipline at the school.

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT'S FAILURE TO GIVE THE PRIOR INCONSISTENT STATEMENT[] JURY INSTRUCTION DENIED DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS AND CONSTITUTED PLAIN ERROR U.S. CONST. [AMEND.] V, VI, XIV; N.J. CONST.

(1947) Art. I, Par. 1 (NOT RAISED BELOW).

POINT II

DEFENSE COUNSEL'S FAILURES TO REQUEST A PRIOR INCONSISTENT STATEMENT JURY INSTRUCTION, ADMISSION INTO EVIDENCE OF A.B.'S PRIOR INCONSISTENT WRITTEN STATEMENT AND A TAILORED JURY INSTRUCTION FOR THE SCRIPTED TELEPHONE INTERCEPT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND REQUIRES REVERSAL U.S. CONST. [AMEND.] VI, XIV; N.J. CONST. (1947) Art. I, Par. 10 (NOT RAISED BELOW).

POINT III

THE LOWER COURT ERRED IN FAILING TO CONSIDER ALL THE OFFENSE PARTICULARS WHEN IT DECIDED NOT TO SENTENCE DEFENDANT IN A THIRD DEGREE RANGE UNDER N.J.S.A. 2C:44-1F(2) (PARTIALLY RAISED BELOW).

We first address the issue of the failure to charge the jury as to A.B.'s alleged prior inconsistent statements.

During the charge conference, the judge raised the issue of charging "prior contradictory statements of witnesses, is that here?" The State responded in the affirmative, and defense counsel said: "I don't object to it, Judge. I was looking for false in one, false in all." The judge did not give the jury a specific charge as to "prior contradictory statements," but he did give the following charge:

As the judges of the facts, you are to determine the credibility of the witnesses and in determining whether a witness is worthy of belief and, therefore, credible, you may take into consideration the appearance and demeanor of the witness, the manner in which he or she may have testified, the witness's interest in the outcome of the trial, if any, his or her means of obtaining knowledge of the facts, the witness's power of discernment, meaning their judgment, understanding, his or her ability to reason, observe, recollect, and relate, the possible bias, if any, in favor of the side for whom the witness testified, the extent to which if at all each witness is either corroborated or contradicted, supported or discredited by other evidence, whether the witness testified with an intent to deceive you, the reasonableness or unreasonableness of the testimony the witness has given, whether the witness made any inconsistent or contradictory statement as well as any and all other matters in the evidence which serve to support or discredit the testimony of any witness.

Through this analysis, as the judges of the facts, you are to weigh the testimony of each witness and then determine the weight to give to it. Through that process, you may accept all of it, a portion of it, or none of it.

If you believe that any party or witness willfully or knowingly testified falsely to any material facts in the case with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may in your discretion disregard all of it.

Following the charge, the judge inquired as to whether there were any exceptions, to which defense counsel answered in the negative.

Where there is no exception to the charge, we must consider this argument under the plain error doctrine. We reverse for unchallenged error if we find the error was "clearly capable of producing an unjust result." R. 2:10-2 (also known as "plain error standard"). There is a presumption that defendant's failure to object below to the jury charge reflected his assessment that it was unlikely to prejudice his case. The Rules give effect to this presumption by treating a defendant's failure to raise a jury charge claim below as a waiver of his right to make such a claim on appeal, thereby limiting appellate courts to reviewing such claims as plain error. R. 1:7-2; R. 2:10-2.

In the context of a jury charge,

plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.
 
[State v. Burns, 192 N.J. 312, 341 (2007) (citation, alteration and internal quotation marks omitted).]

The error must be considered in light of the entire charge and must be evaluated in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). The standard for evaluating the validity of a jury charge is whether the trial court gave "a comprehensible explanation of the questions that the jury must determine," covering all "fundamental matters" in the case. State v. Green, 86 N.J. 281, 287-88 (1981). If the charge, "considered as a whole, presents the law fairly and clearly to the jury, there is no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous." Vadurro v. Yellow Cab Co., 6 N.J. 102, 107 (1950). "Nevertheless, because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are poor candidates for rehabilitation under the plain error theory." State v. Adams, 194 N.J. 186, 207 (2008) (citations and internal quotation marks omitted). The question is whether, in the context of defendant's trial, an unjust result occurred due to an error in the jury instructions. State v. Walker, 203 N.J. 73, 90 (2010).

We recognize that, distilled to its essentials, the prosecution required the jury to determine whether it was A.B or defendant who was telling the truth. The issue in dispute is whether defendant had sexual relations with A.B. That dispute is sharpened by the contradiction between A.B.'s in-court testimony and his statement to third parties that he did not have sexual relations with defendant.

In State v. Allen, 308 N.J. Super. 421 (App. Div. 1998), we addressed the issue of the trial court's failure to instruct the jury as to a witness' prior inconsistent statements. Allen focused on police officers' in-court statements as to their observations of drug transactions and conflicting details in their police reports. The judge in Allen gave an abbreviated charge that was essentially limited to "false in one; false in all." He did not mention inconsistent statements, a fact that we noted with concern. Id. at 427. We identified additional errors in the charge and concluded that they amounted to cumulative error, warranting a reversal of the conviction. Id. at 431.

In State v. Hammond, 338 N.J. Super. 330 (App. Div.), certif. denied, 169 N.J. 609 (2001), we reached a different result where the alleged prior inconsistent statements "lack[ed] any significant exculpatory value that [was] pertinent to the jury instructions whose omission defendant challenge[d]." Id. at 343.

Here, the statements are exculpatory, yet the judge gave a full charge as to credibility, including instructions to the jury concerning "whether the witness made any inconsistent or contradictory statement as well as any and all other matters in the evidence which serve to support or discredit the testimony of any witness."

We conclude that there was no error here warranting a reversal of the conviction. The jury was required to assess the credibility of A.B. and defendant. The jurors were instructed to do so, and we find no basis for our intervention.

We have considered defendant's remaining arguments and we conclude that they are without merit. R. 2:11-3(e)(2). We note that the claim of ineffective assistance of counsel is best reserved for a proceeding pursuant to Rule 3:22-1, rather than direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). See also State v. Morton, 155 N.J. 383, 432-33 (1998); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

As to the sentence imposed, we first note that defendant is no longer incarcerated, so the judge's refusal to sentence defendant as a third-degree offender is now moot; however, we do note that after the judge found that the mitigating factors outweighed the aggravating factors, he made additional findings as to the substance of the offense, leading him to conclude that "I cannot find that the interest[s] of justice demand a downgraded offense."

We will not substitute our judgment for that of the sentencing judge. See State v. Bieniek, 200 N.J. 601, 608 (2010). We find no basis for our intervention.