STATE OF NEW JERSEY IN THE INTEREST OF D.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5327-10T4

STATE OF NEW JERSEY IN THE

INTEREST OF D.O.,

___________________________________

July 1, 2013

Submitted April 8, 2013 Decided

Before Judges Ashrafi and Espinosa.

On appeal from Superior Court of New Jersey,

Chancery Division, Hudson County, Docket No.

FJ-09-2085-10.

Joseph E. Krakora, Public Defender, attorney

for appellant, D.O. (Alison Perrone, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent, State of New Jersey (Nidara Y. Rourk, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

D.O., a sixteen-year-old juvenile at the relevant time, was found guilty of aggravated sexual assault and sentenced to thirty months incarceration for his role in a group sexual attack on a teenage victim. On appeal, he argues that the admission of hearsay evidence at his trial tainted the Family Part's adjudication of guilt, and that his sentence was excessive. We affirm.

A complaint filed in April 2010 charged D.O. with one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and one count of conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2. The testimony and other evidence presented at the joint trial of four juveniles in the Family Part showed the following facts.

After school let out on April 20, 2010, the victim, a fourteen-year-old girl, spent time with her girlfriend, then twelve years old. The pair eventually went to the Montgomery Gardens housing project in Jersey City. The girlfriend told the victim that a teenage boy, whom we will designate by the initial K., wanted to speak with her inside an apartment. The victim went into the apartment to meet the boy. During her conversation with K., the details of which the victim could not otherwise remember at the trial, K. asked the victim whether she was a virgin, and she answered yes.

Later on the same day, the victim, her girlfriend, and another girl went back to the same apartment. There, K. asked the victim to accompany him to the bathroom to talk, and he closed the door behind them. K. then "put [the victim] on the floor and pulled [her] pants and panties down." He got on top of her and initiated sexual intercourse. During the intercourse, he put his hand over her mouth. Although the victim did not say anything to K., she testified at the trial that the sex was unwelcome, that it hurt her, and that she was making a noise that was "like a little bit of moaning and screaming together." K. stopped after five or six minutes when someone knocked on the bathroom door. He fixed his clothes and left the bathroom.

As the victim tried to leave, a teenage boy who resided at the apartment pulled her back inside the bathroom. The two were then joined by D.O, and two other teenage boys. The victim testified that she told the boy who had pulled her back inside that she did not want to be in the bathroom with them, but neither he nor the other boys listened to her. Instead, the boy who had pulled her inside unzipped his pants and exposed his penis. The victim's testimony was not clear regarding what that boy did next. At one point at the trial, she said he did not do anything else; at another point she said he digitally penetrated her vagina. The victim testified that she saw blood on the boy's shirt, which she said came from her because of the sexual activity.

The victim's testimony was much more clear regarding D.O.'s actions. She testified that he took her from where she was seated, bent her over the sink, and penetrated her from behind with his penis. During the incident, D.O. and another boy also fondled the victim's vagina. Still another boy was beside her at the same time "sucking" on her neck. The victim testified that during the group sexual assault, she was again "moaning and screaming at the same time" because the unwelcome intercourse was painful. On cross-examination, the victim acknowledged that it was dark in the bathroom and that none of the boys spoke to her directly. She testified that she could identify D.O. as one who penetrated her with his penis based on his voice and his breathing near her while he was engaged in sexual conduct.

At the trial, the twelve-year-old girlfriend testified and corroborated the victim's version of the events. She added some details, for example, stating that when the victim was in the bathroom during the second assault, the girlfriend tried to "bust in the door" because the victim was "the only girl that was in there" and she was concerned for her safety. She also testified that as the boy who resided in the apartment left the bathroom, he said "that bitch bleeding." And when the victim finally emerged, she observed that the victim was "irregular," "sweating," and "crying." Pertinent to the issues raised on this appeal, the girlfriend testified that the victim said upon exiting the bathroom and being questioned that the several boys "ran the train" and "raped" her.1 The victim also told the girlfriend that her "butt hurt" and that she had "blood between her legs."

After the assaults, the victim went home, showered, otherwise cleaned herself, and changed her clothes. She saw blood in her pants and underwear. When her mother came home, the victim told her what had happened. Her mother was angry and yelled at her, and then took her to the hospital to have a sexual assault exam performed.

The sexual assault nurse examiner testified that the victim "appeared very nervous, she was shaking, [and] her whole body was tremorous." She noted that, although there were no visible injuries to the victim's genitals, there was a small amount of vaginal bleeding. The nurse took oral, vaginal, cervical, rectal, and anal swabs, in addition to a swab of the external genital area. The swabs were sent to a State Police laboratory for analysis.

A lab employee who was certified as an expert in biological stain analysis testified that she tested slides created from the swabs for the presence of semen, blood, and other biological material. The vaginal, cervical, and external genital slides tested positive for semen, which prompted the witness to send them to the DNA lab for further testing. The oral, rectal, and anal slides were negative for semen and were not tested further.

A State Police witness, who was qualified as an expert in forensic DNA analysis, explained that each specimen can be divided into a portion containing only sperm cells and a portion containing non-sperm cells (often skin cells or other biological material). D.O. was found to be a match for the non-sperm cell vaginal and cervical samples (the other co-defendants were excluded as contributors). Analysis of the Y-chromosome (which only men have) indicated that D.O. was also a match to the sperm-cell fractions collected from the victim's vagina, cervix, and external genital area. K. was also a match as a contributor to the same Y-chromosome samples, while the other co-defendants were excluded.

None of the juveniles at trial presented any witnesses or other evidence, except through cross-examination of the prosecution's witnesses. The court found D.O. and K. guilty of aggravated sexual assault. It found the other two juveniles not guilty of sexual assault but it found them guilty of simple assault, N.J.S.A. 2C:12-1(a), for the conduct of one boy in pulling the girl into the bathroom and of the other for sucking on her neck. With respect to the charge of conspiracy to commit aggravated sexual assault, the court found all four juveniles not guilty, stating in its decision that no words had been spoken indicating a plan to commit the assaults. The court apparently concluded that the boys' concert of action was not sufficient evidence beyond a reasonable doubt of a conspiracy to assault the victim. In January 2011, the court sentenced D.O. to thirty months of incarceration with specific recommendations for evaluation and treatment during his confinement.

D.O. raises the following points on appeal:

POINT I

HEARSAY THAT WAS NOT ADMISSIBLE UNDER THE FRESH COMPLAINT DOCTRINE DEPRIVED THE JUVENILE OF HIS RIGHT TO A FAIR ADJUDICATION HEARING. (NOT RAISED BELOW)

POINT II

INADMISSIBLE HEARSAY FROM THE SEXUAL ASSAULT NURSE EXAMINER DEPRIVED THE JUVENILE OF HIS RIGHT TO A FAIR ADJUDICATION HEARING.

POINT III

A CORRECT WEIGHING OF ALL THE FACTORS DOES NOT SUPPORT THE IMPOSITION OF A THIRTY-MONTH TERM OF INCARCERATION.

Although neither D.O.'s attorney nor any other defense counsel objected at the time of trial, D.O. now argues on appeal that admission of the girlfriend's testimony about what the victim told her after emerging from the bathroom prejudiced him at trial because it was inadmissible hearsay. Specifically, he recites the following testimony of the girlfriend as erroneously admitted:

Q (Prosecutor): And how did [the victim] look when she came out of the bathroom?

A: She looked irregular, when she got downstairs she was sweating and she was crying.

Q: Okay. And what did she say, if anything, to you?

A: She was coming downstairs, we was asking what happened. She was like they ran the train on me. I was like what happened, she said they raped me. And she was like my butt hurt and she had blood between her legs.

Q: Okay. And when you say ran the train, what does that mean to you?

A: She said three boys like did it with her at the same time.

Q: Okay. And when you say did it, what does that mean? What is it?

A: They

Q: That's okay, no one is going to say anything, just say what it means.

A: They f***ed her.

Q: And do you mean sex?

A: Yes.

"Hearsay" is an out-of-court statement used to prove the truth of the matter asserted, N.J.R.E. 801(c), and, as a general rule, is inadmissible, N.J.R.E. 802. The only part of the quoted testimony that is hearsay within the meaning of N.J.R.E. 801(c) is the repetition of the victim's statements to the girlfriend after she emerged from the bathroom. The girlfriend's description of the victim and her testimony about the meaning of the slang phrase are not hearsay, although the latter would not have been relevant without the preceding hearsay testimony.

The State argues that the hearsay portion of the girlfriend's testimony was admissible under N.J.R.E. 803(c)(2) as an excited utterance of the victim. The excited utterance exception to the hearsay rule provides that an out-of-court statement may be admitted if it "relate[s] to a startling event or condition [and was] made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." The rationale for this exception is that the stress created by the event reduces the ability of the declarant to reflect on the event and fabricate a statement, thus enhancing the reliability of the statement. State v. Long, 173 N.J. 138, 158 (2002). To fit out-of-court declarations within the excited utterance exception, the proponent must show that the statement: (1) related to a startling event or condition; (2) was made while under the stress of excitement caused by the event or condition; and (3) was made without the opportunity for deliberation or fabrication. State ex rel. J.A., 195 N.J. 324, 340 (2008); State v. Branch, 182 N.J. 338, 365 (2005).

Had defense counsel objected to the girlfriend's testimony at trial, the court would have had an opportunity to rule on its admissibility, and the State might have presented additional foundational evidence if necessary to demonstrate the admissibility of the challenged testimony as an excited utterance of the victim. On the present record, it appears that the excited utterance exception would apply, but it is not necessary for us to reach that conclusion.

We see no prejudicial error in the girlfriend's testimony, even if it included some inadmissible hearsay. Because no objection was made at the time the quoted testimony was given, we review the argument on appeal under the plain error standard. The absence of a contemporaneous objection "suggests that trial counsel perceived no error or prejudice" at the time. State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). In addition, the trial court was deprived of the ability to cure the error, if any, at a time when it could most easily be done. State v. Macon, 57 N.J. 325, 333 (1971). Reversal is appropriate only if the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Walker, 203 N.J. 73, 89 (2010).

Here, the victim testified about the events in the bathroom, and cross-examination of the girlfriend firmly established that she had not personally witnessed the sexual assaults. Far more powerful evidence of D.O.'s sexual assault than the quoted testimony from the girlfriend came from the victim herself, specifying the acts that she attributed to D.O., and from the DNA evidence that supported her claims. The girlfriend's testimony about what the victim said corroborated this evidence but was not crucial in the court's decision. Its admission was not clearly capable of producing an unjust result. See State v. Calleia, 206 N.J. 274, 278, 303-04 (2011) (admission of hearsay as proof of motive was harmless because "non-hearsay evidence established the same essential facts").

In fact, the court relied on the DNA evidence supporting the presence of identified semen to find D.O. and K. guilty of committing aggravated sexual assault. The court found the other juveniles on trial not guilty of that charge despite the girlfriend's understanding that all the boys had engaged in sexual intercourse with the victim. The victim had not unequivocally alleged in her testimony that the acts of the other two boys included sexual penetration. Clearly, the hearsay portion of the girlfriend's testimony was not influential in the court's adjudication of guilt. We find no plain error in the admission of the girlfriend's challenged testimony against D.O.

For similar reasons, we find no plain error in the nurse examiner's testimony that she was told that five boys had raped the victim. There was no contemporaneous objection at trial to that testimony, and it was simply general background information to explain the reasons the nurse conducted the examinations that she did.

However, similar to limiting the testimony of police officers to explaining that they acted based on "information received," the testimony of the nurse examiner went too far when it implicated the four juveniles on trial in the commission of the charged crime. See Branch, supra, 182 N.J. at 349-51; State v. Irving, 114 N.J. 427, 446 (1989); State v. Bankston, 63 N.J. 263, 268-69 (1973). But the nurse examiner's single reference to a rape by five boys was not evidence that influenced the judge's decision.

More significant was admission of the nurse examiner's fifteen-page report in evidence. Defense counsel objected on hearsay grounds to only one page of the report that recounted the victim's description of the events to the nurse examiner. The court was persuaded to admit the challenged part of the report based on the State's argument that the victim's out-of-court statements were not offered to prove their truth but only to prove why the nurse performed the examination in the way that she did (e.g., she took a swab from the victim's neck because the victim stated that one of the juveniles had sucked on her neck). The court was also persuaded that defense counsel had an opportunity to cross-examine the nurse examiner about the contents of her report, although opportunity to cross-examine does not change the inadmissibility of hearsay.

Again, applying the limitations placed on such testimony or other evidence by Branch, supra, 182 N.J. at 349-51; Irving, supra, 114 N.J. at 446; and Bankston, supra, 63 N.J. at 268-69, the contents of the nurse examiner's report should have been redacted to exclude the victim's description of the alleged assaults. Even so, reversal is not required. This was not a trial before a jury, and the trial judge's detailed oral decision emphasized his reliance on the actual testimony of the victim and the results of the DNA evidence, not out-of-court statements the victim made to the nurse examiner or anyone else. The nurse examiner's report did not affect the court's decision. Any error in admission of the unredacted report was harmless.

Finally, we find no error in imposition of a thirty-month custodial sentence upon the juvenile.

"[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). In determining the appropriate disposition for a juvenile adjudicated guilty of an offense, the Code of Juvenile Justice requires the judge to consider a number of factors listed in N.J.S.A. 2A:4A-43(a). Here, the judge considered the factors and chose incarceration as the appropriate disposition.

For a first-degree offense, such as aggravated sexual assault, the maximum sentence for a juvenile is four years incarceration. N.J.S.A. 2A:4A-44(d)(1). In this case, the State requested the maximum; D.O. requested two years; and the court imposed two-and-a-half years. Although D.O. now argues that the court failed to make specific findings as to aggravating and mitigating factors, it does not appear any mitigating factors apply, see N.J.S.A. 2A:4A-44(a)(2), and his attorney did not request at the time of sentencing that the court find any applicable. Meanwhile, the judge's findings, although not specified with reference to statutory citations, mirror several statutory aggravating factors. See N.J.S.A. 2A:4A-44(a)(1). The judge accounted for D.O.'s lengthy juvenile record, the harm caused to the victim, the serious nature of the crime, D.O.'s unstable family situation, and his high likelihood of committing new offenses.

Significantly, the judge quoted from the pre-disposition report: "[D.O.] freely admitted to having engaged in similar situations where several males engaged in sex with one female in a bathroom. While he reported these experiences were consensual it is more likely that these were in fact unreported offenses." The report is consistent with D.O.'s inability or unwillingness to comprehend why his actions were wrongful. When asked, he indicated that the assault was wrong only because there were "too many people," and the victim was younger than he.

The sentence imposed was clearly within the judge's discretionary authority. We find no abuse of discretion that warrants our intervention.

Affirmed.

1 When asked to explain, the girlfriend testified that "ran the train" meant that the boys had sex with her at the same time.