STATE OF NEW JERSEY v. E.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.R.,

Defendant-Appellant.

_______________________________

August 12, 2014

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-09-1077.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant E.R. was charged under Passaic County Indictment No. 09-09-1077 with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and, as amended, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three).

A jury convicted defendant of all counts and the trial judge imposed a twenty-year prison sentence, subject to the 85% parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one and, after merging count three into count two, a concurrent ten-year term subject to NERA on count two. The judge imposed Megan's Law registration requirements, N.J.S.A. 2C:7-1 to -23, parole supervision for life, N.J.S.A. 2C:43-6.4, and a five year period of parole supervision under NERA. Defendant was ordered to provide a DNA sample and applicable penalties and assessments were imposed.

On appeal, defendant challenges his conviction and sentence, arguing:

POINT I

UNCHARGED ACTS OF SEXUAL ABUSE ALLEGEDLY HAVING OCCURRED IN ROCHELLE PARK SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE THEY WERE IRRELEVANT AND POSED A TREMENDOUS RISK OF UNDUE PREJUDICE (NOT RAISED BELOW).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

We have considered the arguments in light of the record and the applicable law. We affirm.

I.

Eight-year-old M.H. lived with her grandmother, mother and step-father in Wayne. Defendant also resided in the home with M.H.'s adult half-sister, K.C., and their two young children. The families moved to Wayne in November 2008, and had previously resided with a relative in Rochelle Park.

On May 29,1 2009, M.H. went to talk to her elementary school counselor, Mati Sicherer. M.H. told Sicherer she had experienced "a very difficult weekend." M.H. explained "her sister and her brother-in-law [K.C. and defendant] had been arguing." M.H. described "a lot of screaming and yelling" and she was required to care for her sister's two young children, who were ages three and twelve months. In the past, Sicherer noted concerns for M.H.'s appearance and hygiene. After this recent conversation with the child, she spoke to the school nurse and the principal "to see . . . what direction we should take . . . . "

On Monday, June 1, 2009, Sicherer called the Division of Youth and Family Services (the Division)2 for advice. As she spoke to the Division screener, M.H. entered her office. Sicherer walked M.H. to her classroom, completed the call to the Division, and retrieved the child taking her back to her office to consider her concerns.

When the conversations with M.H. resumed, she described the prior weekend's events, which included a lot of fighting, people laughing at her, an incident when her stepfather hit her; she said "she was feeling real [sic] bad." M.H. then said, "[defendant] had told her not to say anything to . . . her sister." Sicherer asked what M.H. was referencing and the child responded "'he put his wee wee' and then she pointed to her back." In response to Sicherer's question whether she was touched anywhere else, M.H. "pointed to her vagina as well."

Sicherer assured the child the problem would be addressed. She immediately informed the principal, the nurse, the student resource police officer, and the Division. A uniformed police officer arrived to escort Sicherer and M.H. to the Prosecutor's office, where M.H. and Sicherer were questioned separately.

Giselle Henriquez, a bilingual Child Interview Specialist for the Passaic County Prosecutor's Office, conducted the June 1, 2009 videotaped forensic interview with M.H. at the Passaic County Child Advocacy Center. Henriquez's interview was completely recorded and employed drawing materials, a toy chest and an anatomically correct doll.

In the interview, M.H. demonstrated how defendant touched her, how she was instructed to hold his "weenie" and that she observed "white stuff" come from his penis, which he shook off in a laundry basket. M.H. stated the last encounter with defendant occurred on May 28, 2009.

M.H.'s recitation of events differed from Sicherer's as M.H. said she was never punished physically by her mother or step-father, aside from "very light tap[s]" from her mother. Rather, she was sent to her room and her step-father yelled when angry. Finally, M.H. did not mention she was made to care for K.C.'s children.

During trial, M.H. testified. At the time of trial, she was eleven and in the fifth grade. She commenced the 2008 2009 school year in Rochelle Park, then moved to Wayne in November. M.H. identified defendant in the courtroom, stating he was her sister's boyfriend and they had two children. M.H. stated she shared a secret with Sicherer, that is, she was "sexually abused by [defendant]." She explained she first told Sicherer defendant inappropriately touched her in her Wayne home in "his bedroom, [her] bedroom and in [her] closet." In her direct examination, M.H. described what parts of her body were touched by defendant and what parts of his body were used by circling the identified parts on drawings of a male and female body. M.H. stated the inappropriate touching happened in Wayne "[m]ore than one time" and happened "[a] lot." M.H. confirmed defendant ejaculated and wiped himself on the laundry basket or a paper towel.

M.H. stated defendant lived with her when the family was in Rochelle Park and the inappropriate touching that made her feel uncomfortable also happened in that home. When asked why she had not told anyone earlier, M.H. stated defendant "threatened" her on more than one occasion, stating "he would hurt a specific person in [her] family." M.H. did not remember many details of some events, including what she said to Sicherer or the detail of the prosecutor's interview and what was done during a subsequent medical examination.

On cross-examination M.H. acknowledged she told Sicherer about the sexual abuse by defendant, but denied she had revealed she had problems at home, that her step-father hit her, or there was lots of fighting. She confirmed she told Sicherer defendant "was putting his penis in . . . her vagina" and "in her backside."

The State's forensic experts discussed evidence including test results from a light scan of M.H.'s room for "suspected biological fluids and/or suspected semen." Further, results from testing the laundry basket taken from M.H.'s room revealed two stains that were positive for sperm and seminal fluid and testing of those stains revealed defendant was the source of the DNA. Two stains on a blanket were positive for seminal fluid and matched defendant's DNA profile. The age of the stains was not able to be determined.

Defendant was convicted. This appeal ensued.

II.

Appealing his conviction, defendant argues he was denied a fair trial because considerable trial testimony from M.H. and statements contained in the videotape of her forensic interview regarded alleged assaults that occurred in Rochelle Park. Defendant maintains he could only be tried for conduct that occurred in Wayne. Therefore, the testimony was inadmissible pursuant to N.J.R.E. 404(b), which deals with evidence of other crimes or bad acts.

Generally, a "trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011) (citation omitted). However, because defendant did not raise this challenge at trial, our review of an alleged error is guided by the plain error standard, that is, whether the error was "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. See Rose, supra, 206 N.J. at 157. Not any possibility of an unjust result is sufficient, but the possibility of injustice must be real and "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J.442, 454 (2008) (quoting State v. Macon, 57 N.J.325, 336 (1971)).

Our assessment of plain error "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, the absence of an objection at the time the alleged error occurred may well mean counsel did not consider the error to be significant in the context of the trial. Macon, supra, 57 N.J. at 333.

During her instructions to the jury, the judge addressed the evidence and explained:

During the course of [M.H.]'s testimony in court and also on the videotape, she made reference to what she alleged were prior acts of sexual misconduct by [E.R.] at her home when she lived in Rochelle Park, which is in Bergen County, and also at an aunt's home, which I believe she also indicated as being in Rochelle Park. Ladies and gentlemen, these references to alleged prior acts were presented by the Prosecutor to provide some background as to when it was that the State alleges that the offenses began. That was the only purpose of that testimony and you can only consider it in that conduct [sic]. Whether you decide that such prior acts occurred or did not occur is entirely up to you. Again, however, it was presented by the State solely as background information. I instruct you that when reaching your verdicts, a guilty verdict on any count may only be based on acts alleged to have occurred in Wayne. That is what the indictment covers and that is what is before you. Again, I stress that reference to alleged prior acts in Rochelle Park may only be considered as the State's background explanation of when the alleged acts began.

Now having said all this, I also stress that the defendant has pleaded not guilty to the offenses alleged in the indictment and denies any sexual misconduct at any time with [M.H.].

Defendant also raised no objection to this charge. Regarding a jury charge, plain error requires an impropriety "prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

"Only where there is a clear error of judgment" should a trial court's N.J.R.E. 404(b) determination be disturbed. State v. Barden, 195 N.J. 375, 391 (2008) (internal quotation marks and citation omitted). Where a trial court improperly applies this balancing test, this court "may engage in its own 'plenary review' to determine . . . admissibility." Rose, supra, 206 N.J. at 158 (quoting Barden, supra, 195 N.J. at 391). N.J.R.E. 404(b) provides:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Evidence Rule 404(b) expressly prohibits admission of "evidence of other . . . acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). See State v. Nance, 148 N.J. 376, 386 (1997); State v. Stevens, 115 N.J. 289, 299-300 (1989).

"The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992) (citation and internal quotation marks omitted). Thus, "the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." Id. at 335-36 (quoting 1 McCormick on Evidence 190, at 798 (Strong ed., 4th ed. 1992) (footnotes omitted)).

Rule 404(b) "seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." Barden, supra, 195 N.J. at 388. Thus, evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendant's criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice. See ibid.

[Rose, supra, 206 N.J. at 159.]

When a court considers the admissibility of evidence of other crimes or wrongs under Rule 404(b), we apply the standard adopted by the Supreme Court in State v. Cofield, 127 N.J. 328 (1992).

Turning our review of the challenged evidence in this matter, we find it significant that the references to events in the Rochelle Park home were introduced not to disclose defendant's prior bad acts, but to explain how the abuse started and why M.H. had not discussed the events with another until she told Sicherer. As the trial judge noted, the testimony was to "provide some background." We note the references were brief and neither delved into the specifics of the prior conduct nor dwelled on the Rochelle Park conduct itself. Certainly, the information helped explain how the assaults began, why they continued, and how defendant's prior threats influenced M.H. to maintain her silence.

The record also is clear defendant specifically asked the court not to issue a limiting instruction regarding the Rochelle Park evidence prior to the M.H.'s testimony. Defendant sought a limited 404(b) charge and agreed to the proposed charge used by the court, asserting it was "tailored to the facts" of the case.

In this light, we cannot conclude the evidence should have been precluded, or the judge erred in failing to perform a Cofield analysis. The testimony reflected the longstanding relationship of the parties, the sequence of events experienced by M.H. and was not designed to show defendant's propensity for criminal conduct. Moreover, despite the lack of objection, the trial judge specifically instructed the jury on the evidence's limited purpose.

The Supreme Court recently reaffirmed this use in Rose, stating: "Just as was recognized in [United States v.] Green, [ 617 F.3d 233 (3d Cir.), cert. denied, __ U.S. __, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)] there is no reason that our courts cannot allow, under our Rule 404(b), evidence to be admitted for a similar 'necessary background' or, as otherwise stated, 'the need to avoid confusing the jury,' non-propensity purpose." Rose, supra, 206 N.J. at 181 (citing Green, supra, 617 F. 3d at 249).

Certainly the evidence was relevant. See N.J.R.E. 401 (defining relevant evidence). Further, when considering whether exclusion was required under N.J.R.E. 403, because the evidence's "probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence[,]" we note the information avoided confusion and was not cumulative.

Considering the State's evidence of the criminal conduct occurring in Wayne, which included forensic evidence, the initial forensic interview and M.H.'s testimony, we cannot conclude the introduction of the Rochelle Park references amounted to a strong showing of prejudice warranting reversal. Moreover, the trial court's instruction limited the use of the evidence, guarding against the jury's possible inappropriate consideration and focusing the jury's review to the evidence supporting the Wayne offenses charged. Thus, the probative value was outweighed by any prejudice. We do not find the admission of the evidence was plain error warranting reversal.

Defendant also challenges his sentence as excessive. In our review we must first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental purpose of the sentencing guidelines is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367. We next determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.

Our role is limited. State v. Lawless, 214 N.J. 594, 606 (2013). When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "'not sit to substitute [our] judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (noting a sentence within statutory guidelines may strike a reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court). See also State v. Cassady, 198 N.J. 165, 183-84 (2009), ("[O]ur task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'").

Applying this standard, we identify no basis to disturb defendant's sentence. The judge identified and balanced applicable aggravating and mitigating factors, which were supported by sufficient credible evidence in the record. State v. Carey, 168 N.J. 413, 426-27 (2001).

In imposing the sentence, the judge found aggravating factor one, N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner."), noting defendant committed multiple acts of sexual abuse and threatened M.H.; factor three, N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), based on the repetitive nature of the offenses and their duration; and factor nine, N.J.S.A. 2C:44-1(a)(9), (the need to deter defendant and others from violating the law), finding a very strong need to deter others from harming children. The judge also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), (defendant's lack of criminal record), as he had no criminal history during the twelve years he was in the United States; however, the weight attributed to this factor was offset because defendant's criminal behavior occurred over an extended period of time. The judge also applied factor eleven, N.J.S.A. 2C:44-1(b)(11) because defendant's dependents would suffer from the loss of his financial support. The judge concluded "the aggravating factors very substantially outweigh the mitigating factors[,] justifying the maximum sentence in this case. Again, multiple acts plus terrible threats, I believe call for the maximum sentence."

In arguing for a modification of the term of his sentence, defendant maintains the court overemphasized the need for deterrence. We conclude the argument is meritless. R. 2:11-3(e)(2). The evidence supports a need for both specific and general deterrence. The sentencing guidelines were not violated and the sentence does not shock our judicial conscience.

Affirmed.

1 The report of the incident recorded the date as "Friday May 28, 2009"; however the judge took judicial notice Friday was May 29, 2009.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming it as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).