STATE OF NEW JERSEY IN THE INTEREST OF K.S., A Juvenile

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0970-11T4

STATE OF NEW JERSEY

IN THE INTEREST OF

K.S., A Juvenile,

Appellant.

________________________________________

July 9, 2013

Submitted February 12, 2013 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-0949-11.

Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Suzannah Brown, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent State of New Jersey (Lauren S. Kirk, Special Deputy Attorney General/ Acting Assistant CountyProsecutor, of counsel and on the brief).

PER CURIAM
 

K.S. was adjudicated a delinquent for child abuse, N.J.S.A. 9:6-3, an offense which, had he been an adult would have

constituted a crime of the fourth-degree. The trial judge imposed one year of probation, a referral was made to the Department of Children and Families, and the judge ordered psychological therapy, a sex offender specific evaluation, regular school attendance, and no unsupervised contact with the victim. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we reverse.

I.

The State alleged that K.S. abused K.E. during the summer of 2010. On December 1, 2010, L.E. initiated the matter by filing a complaint.1 At the time of the incident, K.S. was eleven years old and K.E. was nine years old. The record of the adjudication hearing reveals allegations that on three occasions K.S. caused the victim to take his pants down and then K.S. touched the victim's buttocks. To convict K.S. of child abuse, the State had to prove beyond a reasonable doubt that he knowingly performed an indecent, immoral or unlawful act or deed that may have tended to debauch or degrade K.E.'s morals. State v. Overton, 357 N.J. Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003).

K.S. argues that the trial judge erred by admitting the testimony of L.E., the victim's mother, as to certain statements made to her by K.E. K.S. contends that the statements did not meet the requirements for admission under N.J.R.E. 803(c)(27), which permits the introduction of statements made by a child about a sexual offense under certain circumstance. We agree.

We first consider some general principles. N.J.R.E. 803(c)(27) "requires the trial judge to conduct a preliminary hearing pursuant to N.J.R.E. 104(a) to determine whether an out-of-court statement is sufficiently reliable, based on the 'time, content and circumstances of the statement' and then decide what is the 'probability that the statement is trustworthy.'" State v. P.S., 202 N.J. 232, 249 (2010) (quoting State v. D.G., 157 N.J. 112, 128 (1999)). "In determining whether the statement satisfies that standard, the judge should consider 'the totality of the circumstances.'" Ibid. (quoting State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991)). "[A] non-exclusive list of factors relevant to evaluating the reliability of out-of-court statements made by child victims of sexual abuse, includ[es] spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)); see also State v. Burr, 392 N.J. Super. 538, 570 (App. Div. 2007), aff'd in part, modified in part, remanded on other grounds, 195 N.J. 119 (2008). In this case, two factors which should have been more carefully considered are "interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Wright, supra, 497 U.S. at 821-22, 827, 110 S. Ct. at 3150, 3153, 111 L. Ed. 2d at 656, 659-60).

We are required to accord deference to the factual findings reached by the trial judge. P.S., supra, 202 N.J. at 250. If those findings are supported by sufficient credible evidence, we "affirm unless the judge's determination amounted to an abuse of discretion." Ibid. (citing State v. Nyhammer, 197 N.J. 383, 411, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009)). However, "we need not defer to the trial court's legal conclusions reached from the established facts." State v. Jefferson, 413 N.J. Super. 344, 352 (App. Div. 2010). "'If the trial court acts under a misconception of the applicable law,' we need not defer to its ruling." Ibid. (quoting State v. Brown, 118 N.J. 595, 604 (1990)). Applying these standards to the case at hand, we conclude reversal is required.

The trial court conducted a N.J.R.E. 104(a) hearing on the admissibility of K.E.'s statements to his mother. Both K.E. and his mother L.E. testified at the hearing. After hearing the arguments of counsel, the judge found that K.E.'s statements to his mother met the threshold for admission under N.J.R.E. 803(c)(27).

We glean certain facts from the N.J.R.E. 104(a) hearing. L.S. noticed late in the summer of 2010 that her son "got very, very solemn, very quiet and he'd just be staring out into space." She kept asking him if he was "okay" and after a week of questioning she asked him "Baby, did somebody do something to you? Did somebody hurt you?" He did not respond. She then recounted:

The next day I put him in a car and I took him and I drive and I parked and I looked him in his eyes and I told him that if he was holding a secret from me it was the same as him lying to me and that my job as his mother is to keep him safe and I needed him to just tell me if he was holding back something. He said, "I'm not holding back anything." I said, "[K.E.], I know a place I can take you and I can introduce you to some person, they're a counselor. They counsel people. They help people with secrets." I said, "If you don t want to talk to me about secrets would you like to go speak to someone else?" He said, "Yes." And at that moment I lost my breath because I knew that something horrible had happened to him, but he was willing to go talk to someone else. He wasn't ready yet to tell me what it was.

L.S. took her son to counseling and after the second or third session she asked K.E.,

"Did someone do something to you?" I had been asking him about football coaches, his brother, any male he had been in contact with. And I said, "Are you sure none of the coaches did anything to you?" I'm thinking adult males. I said, "Your brother?" He said, "No. My brother would never do anything like that to me, Ma. It was [K.S.]" And I just, I said, "[K.S.], the kid you play with?" He said, "Yes, it was [K.S.]" So that was the day he disclosed to me what happened with [K.S.]

She stated that K.E. told her about an incident at K.S.'s house. At that point she "thought that was the only time." However she kept "pressing him" but he didn't disclose any other incidents. "About two days" later she again questioned him concerning other incidents at which time K.E. stated there were two other times with similar incidents. L.E. believes these conversations took place in August.

K.E. testified at the hearing that there were three incidents. The first incident occurred outside of a building in his neighborhood when K.S. told him to "pull your pants down." K.E. stated that after complying, K.S. "would touch my butt on purpose[.]" The second time occurred in K.S.'s house when K.E. was told to pull his pants down, and K.S. "patted my butt like the first time." K.E. said the third time occurred right across the street from his house when K.S. told him to pull his pants down and "He patted my butt like the first time."

Here, the testimony elicited at the N.J.R.E. 104(a) hearing does not demonstrate sufficient factors to support the reliability of the out-of-court statements made by K.E. to his mother L.E., and therefore those statements should not have been admitted. The repeated questioning of K.E. by his mother certainly discounts spontaneity. Further the trial judge failed to consider whether the statements sought to be admitted were consistent with other statements made by K.E. as evinced by the hearing testimony and the facts set forth in the complaint. The hearing testimony given by K.E. and L.E. was substantially similar despite L.E. relating that the first incident occurred at K.S.'s home, which K.E. said was the second incident. Our main concern is the lack of consistency between the facts set forth in L.E's sworn complaint and the testimony given by L.E. and K.E. at the hearing.

We determine that the trial judge's findings are not supported by sufficient credible evidence, and therefore the judge's determination to admit the out-of-court statements amounted to an abuse of discretion. Nyhammer, supra, 197 N.J. at 411. It is apparent to us "that the finding is 'clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" P.S., supra, 202 N.J. at 249 (quoting State v. Locurto, 157 N.J. 463, 471, (1999)).

Inasmuch as the trial judge has expressed his opinion on the issue of K.S.'s culpability on a record we have found to be improper, the remand trial should take place before a different judge. Reversed and remanded for a new trial.

1 The complaint certified that, based on information supplied to her presumably by her son, K.S. did "commit the act of child abuse against K.E. a nine (9) year old juvenile specifically by pulling the pants of K.E. down and touching the victim buttocks to buttocks and penis to buttocks on three separate incidents in violation of title 9."