STATE OF NEW JERSEY v. R.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5423-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.F.,

Defendant-Appellant.

-

September 5, 2013

 

Before Judges Espinosa and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0203.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant R.F. appeals from his conviction of six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He also appeals from the sentence imposing a thirty-four-year term of imprisonment.

On appeal defendant raises the following arguments:

POINT I

 

THE APPELLATE DIVISION'S PRIOR DECISION THAT THE PASSAIC CRIME WAS INADMISSIBLE UNDER N.J.R.E. 404(b) AT THE TRIAL OF THE BERGEN OFFENSES WAS "LAW OF THE CASE" WHICH FOREVER BARRED THAT PASSAIC ALLEGATION FROM BEING TRIED TOGETHER WITH THE BERGEN COUNTS, BECAUSE THE TEST FOR JOINDER/SEVERENCE IS THE SAME AS FOR RULE 404(b) ADMISSIBILITY; MOREOVER, THE STATE'S BEHAVIOR IN THIS CASE - - FAILING TO MOVE FOR LEAVE TO APPEAL THE ORIGINAL DECISION BARRING THE AMENDMENT, AND INSTEAD, WAITING UNTIL DEFENDANT SUCCESSFULLY APPEALED HIS CONVICTIONS BEFORE FIRST MOVING AGAIN TO AMEND THE INDICTMENT TO ADD A NEW COUNT AND THEN, WHEN THAT MOTION WAS UNSUCCESSFUL, SEEKING A SUPERCEDING INDICTMENT WITH ADDITIONAL, AND BROADER COUNTS - - RAISES A PRESUMPTION OF VINDICTIVENESS UNDER BLACKLEDGE V. PERRY[1] WHICH CANNOT BE OVERCOME, AND WHICH BARRED THE STATE FROM PURSUING THOSE ADDITIONAL/BROADER CHARGES AND SHOULD RESULT IN A REVERSAL OF ALL THE CONVICTIONS. (Not Raised Below)

 

A. Law of the Case

 

B. The State's Actions in This Case Trigger a Presumption of Vindictiveness Which Cannot be Overcome.

 

 

 

 

POINT II

 

THE JURY INSTRUCTION ON LACK OF FRESH COMPLAINT UNCONSTITUTIONALLY INTRUDED ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TOLD THE JURORS THAT THEY
"MAY NOT AUTOMATICALLY CONCLUDE" THAT THE COMPLAINANT'S TESTIMONY WAS "UNTRUTHFUL BASED ONLY ON HER SILENCE OR DELAYED DISCLOSURE," PARTICULARLY WHEN THE NEW JERSEY SUPREME COURT HAS HELD THAT SUCH LANGUAGE SHOULD BE REMOVED FROM THAT INSTRUCTION. (Not Raised Below)

 

POINT III

 

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

 

For the reasons that follow, we affirm defendant's conviction. While we do not find defendant's sentence excessive, we remand for correction of sentencing errors.

I.

The underlying facts of this appeal concern sexual abuse allegations against defendant by his biological daughter, A.G. We first address the lengthy procedural background of the case and then the facts as presented at trial.

A. Procedural Background.

On February 1, 2006, a Bergen County grand jury issued an indictment charging defendant with four counts of first-degree aggravated sexual assault and one count of second-degree endangering the welfare of a child. Shortly thereafter, the State moved to amend the indictment to include a count of aggravated sexual assault that occurred in Passaic County. Although the count had been true billed by the grand jury, the State mistakenly omitted it from the filed indictment. The court denied the motion.

Defendant was tried before a jury and was convicted on all five counts of the indictment. Defendant appealed the conviction, and we reversed and remanded for a new trial. State v. R.F., No. A-1604-07 (App. Div. May 15, 2009). Specifically, we determined that admission of evidence of other sexual assaults not included in the indictment including the sexual assault in Passaic County deprived defendant of his right to a fair trial. Id. at 12-25.

On remand, the State renewed its motion to amend the indictment to include the Passaic County aggravated sexual assault count. The court again denied the motion. We granted the State leave to appeal and affirmed. State v. R.F., No. A-4969-09 (App. Div. Dec. 15, 2010).

On February 4, 2011, the State filed a superseding indictment, which included the same counts as the preceding indictment, as well as the count pertaining to the Passaic County aggravated sexual assault. Defendant was tried before a jury from November 15 to 17, 2011.

 

B. Facts Presented at Trial.

The following facts are derived from A.G.'s testimony at the re-trial. A.G., born in 1988, is the biological daughter of defendant. Defendant was never married to A.G.'s mother, and when A.G. was about one year old, their relationship ended. Although A.G.'s mother and defendant no longer were together, A.G. maintained a relationship with defendant, often visiting him and attending family functions with him.

A.G. testified that when she was about six or seven years old and living in an apartment in Hackensack with her mother, defendant would occasionally come to babysit her. During one of these occasions, defendant removed A.G.'s slacks and touched her vagina and breasts. Defendant also removed his own pants and told A.G. to "play with" his penis. Defendant instructed A.G. as to how she should touch his penis and she followed his instructions. A.G. claimed that between the second and fourth grades, she suffered from similar sexual abuse whenever she and defendant were alone in the Hackensack apartment. According to A.G., she did not reveal the abuse at the time because she did not understand what was happening and because defendant was her father.

Within a few years, the sexual abuse turned into sexual intercourse. When A.G. was about eleven years old, she and her mother moved into a home in River Vale. Thereafter, when A.G. was about twelve or thirteen years old, her father drove her back to her home from Paterson, where she had visited him. After he parked his car in front of the house, defendant ordered A.G. to get into the back seat where he proceeded to lie on top of her and penetrate her vagina with his penis. A.G. testified that she exclaimed "ouch" due to the pain, but defendant did not stop. A.G. testified that she did not say anything to her mother, who suffered from depression, because she did not want to upset her.

On another occasion, while driving A.G. home, defendant reached down A.G.'s blouse and touched her breasts and vagina. Once they got to A.G.'s home in River Vale, defendant went inside A.G.'s bedroom, pushed her on the bed, and removed her slacks and his own. Defendant then penetrated A.G.'s vagina with his penis. Although she exclaimed in pain, A.G. testified that defendant told her to "[t]ake it. Don't be a baby. This is the sort of thing[] that fathers and daughters do." Defendant also made A.G. perform oral sex on him.

A.G. testified that the next assault occurred when she was fourteen years old. Her mother had dropped her off at the auto body shop defendant worked at in Paterson. Once there, defendant had A.G. get in the back seat of a car and then had intercourse with her.

In 2003, A.G. and her mother moved to an apartment in Hackensack. A.G. testified that one day defendant came over to babysit her, and then took her into her bedroom and penetrated her vaginally. He also had A.G. perform oral sex on him.

According to A.G., she began to realize the problems with defendant's actions after she watched a television program about sexual abuse of children by family members. She decided not to reveal the abuse, but instead, decided to minimize her contact with defendant. Soon thereafter, A.G. told her boyfriend and half-sister, with whom she was close.

A.G. testified that the last sexual assault occurred in July 2003 following a wedding that A.G., her mother, and defendant attended. A.G. and her mother went home after the reception and defendant came over. Once home, A.G. went to bed, but awoke in the middle of the night to her father standing completely naked in the doorway to her room. She shut the door with him outside and went back to bed. In the morning, defendant entered A.G.'s bedroom wearing only a T-shirt. He pulled the covers off her bed, grabbed her and inserted his penis in her vagina. A.G. pushed defendant away and he left her bedroom. According to A.G., this was the first time she pushed defendant away.

In 2004, A.G. began to suspect she might have a sexually transmitted disease. Because she was worried, A.G. finally informed her mother and a teacher at school about the sexual abuse, which was then reported to the Bergen County Prosecutor's Office.

At the conclusion of the trial, the jury convicted defendant of all counts of the superseding indictment. This appeal followed.

II.

A. Law of the Case.

Defendant contends that our prior ruling reversing his conviction, based on the State revealing evidence at trial pertaining to the unindicted Passaic County sexual assault, barred the State from adding the Passaic County sexual assault count to the superseding indictment. We disagree.

Because defendant neither filed a motion to sever the Passaic County count from the indictment nor objected to its inclusion in the indictment prior to trial, we review defendant's arguments under the plain error rule. R. 2:10-2.

Pursuant to the law of the case doctrine, once a legal decision has been made in a particular matter, it "'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). However, the doctrine is a discretionary rule and its application is dependent on the facts of the case. Id. at 538-39.

Here, defendant's reliance on the law of the case doctrine is misplaced. During the first trial, the sexual assault that occurred in Passaic was not part of the indictment. In our decision reversing defendant's initial conviction, we determined the testimony pertaining to sexual assaults that occurred in Passaic and Jamaica should not have been admitted at trial. We determined that under N.J.R.E. 404(b), the probative value of the evidence "did not outweigh the prejudice inherent in permitting the jury to hear about the other crimes . . . ." Additionally, we determined the trial court's limiting instruction pertaining to other crimes evidence was grossly inadequate. Thus, we concluded the admission of the other crimes evidence constituted harmful error. Nowhere did we address whether the Passaic County sexual assault could be joined in a superseding indictment. Defendant's argument relies upon a distortion of our earlier decision and a mischaracterization of State v. Pitts, 116 N.J. 580, 602 (1989).

Therefore, the law of the case doctrine did not bar the inclusion of the Passaic County count in the superseding indictment.

B. Prosecutorial Vindictiveness.

Defendant argues the inclusion of the Passaic County count in the superseding indictment following his successful appeal violated his due process rights because it was charged based on prosecutorial vindictiveness. Again, we disagree.

It is impermissible for the State to punish a defendant for exercising his legal rights. United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488, 73 L. Ed. 2d 74, 80 (1982); Blackledge, supra, 417 U.S. at 28, 94 S. Ct. at 2103, 40 L. Ed. 2d at 634-35. Generally, where the State adds charges following a successful appeal by a defendant, there is a presumption of prosecutorial vindictiveness. United States v. Campbell, 410 F.3d 456 (8th Cir.), cert. denied, 546 U.S. 966, 126 S. Ct. 492, 163 L. Ed. 2d 373 (2005).

Here, defendant contends that the State added the Passaic County count to punish him for his successful appeal. A review of the record shows this contention lacks merit. The State initially intended to include the Passaic count in the initial indictment but mistakenly left it out. Prior to the first trial, the State moved to amend the indictment to add the Passaic count. Thus, the addition of the Passaic count in the superseding indictment was not the result of vindictiveness due to defendant's successful appeal, but rather a remedy for the State's mistake of failing to include the count in the initial indictment. As such, the inclusion of the Passaic count did not violate defendant's due process rights.

C. Jury Instructions on Fresh Complaint.

Defendant argues the trial court's jury instruction improperly intruded on the jury's function to determine credibility of witnesses because it included language that the jury could not "automatically conclude" A.G.'s testimony was untruthful based on her delayed disclosure of the sexual abuse. Again, we disagree.

The fresh complaint doctrine permits proof that a victim of sexual assault complained of the assault within a reasonable time to someone the victim would normally turn to for sympathy, protection and advice. The evidence is permitted to forestall the assumption that no assault occurred because no complaint was made.

 

[State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572, 832 (2003) (internal citations omitted).]

 

In instructing the jury on fresh complaint testimony, the trial judge must indicate that the victim's delay in reporting his or her abuse could be considered in assessing her credibility, but the silence or delay, in and of itself, is not inconsistent with a claim of abuse. State v. P.H., 178 N.J. 378, 396-97 (2004). The court must also clarify that a fresh complaint does not bolster the victim's credibility or prove the underlying truth of the sexual assault but merely dispels the inference that the victim was not abused. State v. Bethune, 121 N.J. 137, 148 (1990).

Although they pertain to similar issues, child sexual abuse accommodation syndrome (CSAAS) and fresh complaint testimony are not the same. CSAAS evidence is admitted in sexual abuse cases through expert testimony to "'explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred.'" State v. W.B., 205 N.J. 588, 609 (2011) (quoting State v. J.Q., 130 N.J. 554, 579 (1993)).

In W.B., the trial court issued a jury instruction, based on the model CSAAS charge, which included language that the jury may not automatically conclude a witness's testimony is untruthful based on his or her delayed disclosure. Id. at 621-22. The defendant appealed his conviction for sexual abuse related offenses, arguing the inclusion of the word "automatically" in the CSAAS jury charge unduly limited the function of the jury to weigh the credibility of witnesses. Ibid. Defendant argued the word "automatically" should have been substituted with "may or may not." Id. at 622. The Supreme Court found no error in the charge, but directed the Model Jury Charges (Criminal) Committee to study the issue. Ibid.

In this case, following A.G.'s testimony about her revealing the abuse to certain individuals, the trial court issued a fresh complaint limiting instruction to the jury:

You just heard testimony from this witness . . . that she disclosed these alleged incidents to several people.

 

I just want you to know that this disclosure itself is not evidence that the sexual offense actually occurred or that she is credible. It merely serves to negate any inference that because of her assumed silence that the offense did not occur.

 

It does not strengthen her credibility, it does not prove the underlying proof of the sexual offense. It only dispels any negative inference that might be made from her silence over the time period. That's all.

 

There were no objections regarding the instruction. At the conclusion of testimony, the trial court provided the State and defense counsel with the fresh complaint jury charge he planned on issuing to the jury. The court incorporated a minor change requested by defense counsel, but the defense otherwise had no objection to the charge, which was a blend between the two model jury charges for fresh complaint. See Model Jury Charge (Criminal), Fresh Complaint (Revised February 5, 2007); Model Jury Charge (Criminal), Fresh Complaint: Silence or Failure to Complain (Revised April 19, 2004). Thereafter, the judge issued the fresh complaint charge to the jury:

The law recognizes that stereotypes about sexual assault complainants may lead some of you to question [A.G.'s] credibility based solely on the fact that she did not complain about the alleged abuse sooner.

 

You may not automatically conclude that [A.G.'s] testimony is untruthful based only on her delayed disclosure. Rather, you may consider the delayed disclosure along with all of the other evidence including her explanation for the delayed disclosure whether you decide how much weight to afford [A.G.'s] testimony.

 

You have heard testimony that [A.G.] disclosed the alleged acts of sexual penetration to various persons. It is up to you to determine if such disclosures were made. Those disclosures, if they occurred, are not evidence that the sexual offense actually occurred, or that [A.G.] is credible. They may serve to negate any inference that because of her assumed silence the offense did not occur.

 

They do not strengthen her credibility, nor do they prove the underlying truth of the sexual offense or offenses. If you find that the disclosures occurred, they only dispel any negative inference that might be made from her assumed silence.

 

Because defendant did not object to the jury charge, we review it for plain error, Rule 2:10-2, which we do not find. The jury charge was issued in accordance with two model jury charges on fresh complaint. Contrary to defendant's assertion, W.B. did not necessitate the removal of the word "automatically" from a jury instruction relating to delayed disclosure,2 but rather, merely instructed the model charge committee to look into the issue in relation to CSAAS jury instructions. W.B., supra, 205 N.J. at 622. The trial court's jury charge effectively emphasized to the jury that it was within their discretion to determine A.G.'s credibility in light of her delayed disclosure when combined with the other evidence. Thus, the charge did not usurp the jury's function to determine credibility of witnesses.

D. Defendant's Sentence.

Defendant contends that his sentence is manifestly excessive. Again, we disagree.

At sentencing, the judge applied aggravating factors two, seriousness of harm inflicted upon the victim, N.J.S.A. 2C:44-1a(2), and three, risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3), as well as mitigating factors seven, lack of criminal history, N.J.S.A. 2C:44-1b(7), and eleven, substantial hardship to dependents, N.J.S.A. 2C:44-1b(11). The judge found the aggravating factors substantially outweighed the mitigating factors.

The judge sentenced defendant on counts one, two, three, five, and six (all aggravated sexual assault charges) to concurrent seventeen year terms of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; on count four (aggravated sexual assault) to a consecutive seventeen year term with an eighty-five percent period of parole ineligibility; on count seven (endangering the welfare of a child) to a concurrent eight year term. Defendant was also ordered to pay $12,000 to the Sex Crime Treatment Fund, N.J.S.A. 2C:14-10, in addition to the other fines and penalties. Finally, defendant was ordered to serve a thirty year term of parole supervision following release from prison, lifetime community supervision, N.J.S.A. 2C:43-6.4, register as a sex offender, and have no contact with A.G.

When reviewing defendant's sentence we may not substitute our own judgment for that which is left in the sound discretion of the trial judge. State v. Kirk, 145 N.J. 159, 175 (1996). With that in mind, due to the serious nature of defendant's offenses, we are satisfied his sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). We also see no merit in defendant's argument that the sentence imposed was vindictive because the term of incarceration is longer than the term imposed prior to the reversal of his first conviction.

We do, however, vacate certain aspects of the conviction consistent with certain concessions made by the State on appeal. We vacate the $12,000 Sex Crime Treatment Fund fine, as the law mandating such fine, N.J.S.A. 2C:14-10, did not become effective until April 26, 2006, well after the time defendant committed the offenses for which he was convicted. We also reduce the thirty-year period of parole supervision to ten years to reflect the two consecutive sentences imposed by the sentencing judge. See State v. Friedman, 209 N.J. 102, 120 (2012). Thus, we remand to the sentencing court to amend the judgment of conviction in accordance with this opinion.

Affirmed in part; reversed and remanded in part. We do not retain jurisdiction.

 

1 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

2 W.B. concerned a CSAAS charge, not a fresh complaint charge.