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

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NOT FOR PUBLICATION WITHOUT THE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

IN THE INTEREST OF J.O.

October 1, 2014

Submitted September 10, 2014 Decided

 
Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-944-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.O. (Lee March Grayson, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Following a bench trial, J.O. was adjudicated delinquent of offenses which, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree child endangering, N.J.S.A. 2C:24-4a. The trial judge imposed a three-year term of probation and a three-year suspended sentence conditioned upon the juvenile's successful completion of an inpatient program. Appropriate fees and penalties were imposed. J.O. now appeals, and we affirm.

We recount the circumstances developed during the N.J.R.E. 104 hearing and the trial. J.O., then thirteen, resided with his parents in an apartment shared with Amy,1 who was five, her parents, and her two siblings. Amy's family occupied one upstairs bedroom, J.O.'s family the other. J.O. slept in the living room downstairs.

On August 4, 2011, after Amy and her younger brother were asleep, Amy's parents, Bill and Mary, went shopping for approximately one hour, taking their baby with them. They returned only to discover J.O., Amy, and her brother awake and coming downstairs. Mary asked Amy why she was awake, and J.O. said "I didn't do anything bad," repeating the comment three times. Amy's parents walked their children up to the bedroom. A few minutes later, Amy's mother saw her crying in a corner, her arms crossed in front of her chest. Mary asked what was wrong, but Amy did not respond. After her father left the room with the other child to get a snack, Amy told her mother, "No, I can't tell you because they say that the police will take away my Papi and they're gonna kill you. Who's gonna take care of my little brother . . . and the baby." Amy eventually said J.O. had kissed her on the mouth.

Bill had returned to the bedroom by this point, and he called J.O. upstairs. When confronted, J.O. denied having kissed Amy. After Mary asked Amy to repeat what she had told her parents in front of J.O., however, he said "Yes, yes." He also said he did not know why he had kissed the child and was very sorry. J.O. later agreed that the kiss was like a "boyfriend and girlfriend kiss."

Mary testified that Amy's behavior changed over the next few days, including loss of appetite and of interest in play. On the afternoon of August 24, twenty days after the initial incident, Amy disclosed that J.O. had sexually assaulted her, not just kissed her. When J.O. was confronted by Amy's parents, he vacillated between insisting he had only kissed her and admitting he had sexually assaulted her. He reiterated that he did not know why he had done it. That day, when J.O.'s parents returned home, J.O. repeated that he had done more than just kiss Amy.

The sexual assault was reported to the Lakewood Police Department on August 29. The following day, Detective Melissa Matthews of the Ocean County Prosecutor's Office Special Victims Unit videotaped the interview with Amy. The video recording was played during the N.J.R.E. 104 pretrial hearing addressing admissibility pursuant to N.J.R.E. 803(c)(27); it was played again during the trial.

During the interview and at trial, Amy said that J.O. took off his clothes and her clothes, and laid his body on top of her. She said "it was hard." Amy also testified that J.O. put his penis inside her vagina, using Spanish language slang terms for body parts. She also said J.O. touched her "girl part" with his "boy part," and with his fingers. When asked if J.O. put anything inside of her, Amy said yes, that it was hard and that it hurt. She cried while it was happening and was afraid. J.O. threatened her not to tell anyone, saying that she would get into trouble if she told.

Detective Matthews interviewed J.O. as well. He said he had been confused by Amy's parents' questions and that he had only kissed Amy.

The judge acquitted J.O. of the first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), because of the lack of specificity in the child's description of the incident. He found, however, that the State had proven beyond a reasonable doubt that J.O. had touched Amy's sexual organs with his hand and his penis, and that he did so for his sexual gratification. The judge found Amy's testimony highly credible and her descriptions consistent.

On appeal, J.O. raises the following points for our consideration

POINT I

THE ADMISSION OF [AMY]'S OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE PURSUANT TO N.J.R.E. 803(C)27 WAS IMPROPER AND DENIED THE JUVENILE HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, [ ] 1, 9, 10).

POINT II

THE REPETITION OF [AMY]'S VERSION OF THE ALLEGED EVENTS VIOLATED N.J.R.E. 403 BY UNDULY PREJUDICING THE JUVENILE, MISLEADING THE TRIER OF FACT[,] AND CAUSING UNDUE DELAY, WASTE OF TIME, AND THE NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE.

POINT III

HEARSAY TESTIMONY FROM THE ALLEGED VICTIM'S MOTHER ABOUT [AMY]'S STATEMENT WAS IMPROPERLY ADMITTED UNDER THE EXCITED UTTERANCE EXCEPTION, RESULTING IN HARMFUL ERROR[] THAT WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT REQUIRING REVERSAL OF THE JUVENILE'S ADJUDICATION OF DELINQUENCY AND A NEW TRIAL.

POINT IV

BECAUSE THERE WAS NO EVIDENCE THAT THE JUVENILE INTENDED EITHER HIS OWN SEXUAL AROUSAL OR GRATIFICATION OR THE VICTIM'S DEGRADATION OR HUMILIATION WHEN HE ALLEGEDLY TOUCHED HER, THE JUVENILE'S ADJUDICATIONS FOR CRIMINAL SEXUAL ASSAULT MUST BE REVERSED. (U.S. CONST. AMEND XIV; N.J. CONST. ART. 1, [ ] 1). (NOT RAISED BELOW).

POINT V

BECAUSE THERE WAS INSUFFICIENT PROOF BEYOND A REASONABLE DOUBT THAT THE JUVENILE ENDANGERED THE WELFARE OF A CHILD, HIS ADJUDICATION OF DELINQUENCY MUST BE REVERSED. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, [ ] 1). (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AGAINST THE JUVENILE AT THE END OF THE STATE'S CASE.

POINT VII

DEFENSE COUNSEL'S FAILURE TO CROSS-EXAMINE THE ALLEGED CHILD-VICTIM VIOLATED THE JUVENILE'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSER IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT VIII

BECAUSE THE TRIAL COURT REPEATEDLY INTERRUPTED DEFENSE COUNSEL'S SUMMATION BY ASKING MULTIPLE QUESTIONS, THE JUVENILE WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, [ ] 1, 9, 10).

POINT IX

BECAUSE THE TRIAL COURT EXPRESSED CONCERNS ABOUT THE "DANGER OF PREJUDICE" CREATED BY PRESIDING OVER PRE-TRIAL EVIDENTIARY HEARINGS IN CONNECTION WITH THE ADMISSIBILITY OF [AMY]'S VIDEO-RECORDED STATEMENT UNDER N.J.R.E. 803(C)27 AND THEN PRESIDING OVER THE DELINQUENCY TRIAL AS THE TRIER OF FACT, THE JUDGE SHOULD HAVE GRANTED DEFENSE COUNSEL'SMOTION FOR DISQUALIFICATION.

POINT X

REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE JUVENILE OF JUSTICE.

We consider defendant's points four, five, six, and eight to be so lacking in merit as to not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). As to those claims of error, we note that the trial judge found Amy's statements detailing the sexual assault, including that J.O. felt "hard," to be highly credible. Adding her testimony to J.O.'s own admissions, the State met its burden to prove each element of the relevant statutes beyond a reasonable doubt. With regard to point eight, since the judge's questions were not disruptive, but rather sought a better understanding of defense counsel's arguments, the interruptions did not deprive the juvenile of his right to a fair trial.

Turning to his first point, J.O. contends that the court erred in ruling that the child's videotaped interview was admissible pursuant to N.J.R.E. 803(c)(27), which establishes the tender years exception to the hearsay rule

A statement by a child under the age of twelve relating to sexual misconduct committed . . . against that child is admissible . . . if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of time, content and circumstances of the statement there is a probability that the statement is trustworthy; and . . . (i) the child testifies at the proceeding . . . .

J.O. claims the child's statements were not trustworthy and Matthews's questioning not neutral. The trial court disagreed, opining that the interview techniques employed by Matthews were neither suggestive nor coercive. See State v. Michaels, 136 N.J. 299, 313 (1994).

It is undisputed that in assessing the trustworthiness of N.J.R.E. 803(c)(27) statements, the judge should consider "the totality of the circumstances." State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). This includes consideration of "spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." State v. P.S., 202 N.J. 232, 249 (2010) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)).

The trial judge stated that although the detective engaged in some minimal prompting, she was merely directing the flow of the conversation to the relevant topics. After this direction, the child volunteered the information, particularly "when it came to volunteering who did this to her." On this score, the judge observed that the child "didn't hesitate at all. She indicated [J.O.] was the one who had hurt her, the one that committed the act." He found the child to have been unequivocal in her description of events, employing explicit terminology, albeit in Spanish, explaining that J.O. inserted his sexual organ into hers and "that it hurt." The judge observed that at her age, Amy was unlikely to have fabricated the event as she had no motive "to accuse someone who lived with her as part of the extended family."

As J.O. points out, the child's videotaped explanation regarding the difference between telling the truth and a lie was unclear; however, she clearly conveyed her understanding that she was to tell the detective the truth. Thus the trial judge's admission of the statement pursuant to the rule was not an abuse of discretion. See State v. Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.").

In his third point, J.O. alleges that the trial court improperly admitted statements under N.J.R.E. 803(c)(2), the excited utterance exception to the hearsay rule. Even if we assume for the sake of argument, as J.O. posits, that eight minutes elapsed from the time Amy's parents came home to the time she disclosed that J.O. had kissed her, the length of time and the circumstances of the statement did not violate the rule. N.J.R.E. 803(c)(2) requires that the statement be one "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." The proponent of the statement must establish not only that it related to a startling event or condition, but also that it was made while under the stress of this event or condition, and without the opportunity for deliberation or fabrication. State v. Branch, 182 N.J. 338, 365 (2005).

In this case, even if eight minutes elapsed between the time Amy's parents came home and her disclosure of the kiss, the child was but five years old. Her silence about the event until she was in the privacy of the family's shared bedroom and alone with her mother, her brother and father having left the room, does not establish an opportunity to fabricate or deliberate. It just demonstrates that at her very young age, she was hesitant to speak until only her mother was present. We are thus satisfied that the child's statement was indeed made while she was still under the stress of excitement caused by the event. See State v. Buda, 195 N.J. 278, 293 (2008). In Buda, a three-year-old made some initial statements regarding a physical assault, including identifying his assailant, and then made additional statements several hours after the event and in response to questioning. Id. at 297-98. This delay was occasioned by the presence of the assailant, who drove the child to the hospital, and the fact the child could not safely say anything while he was there. Ibid. His later statements were admitted under the rule since they were made while he was in a "zone of relative safety" beyond the perpetrator's presence. Id. at 298.

As the trial judge found in this case, Amy, once she entered her bedroom, her family's private area, immediately displayed distress. Within minutes, once her father and brother were gone, Amy made the disclosures. It is reasonable to conclude that it was not until then that she too felt she was in a zone of safety where she could report the disturbing event, just like the child in Buda. Furthermore, Amy said she was afraid because J.O. had threatened her family if she disclosed.

We employ a deferential standard of review when considering a trial court's decision on the admissibility of evidence. See State v. Buckley, 216 N.J. 249, 260 (2013). In this case, the length of time involved, the circumstances of the disclosure, the age and condition of the child, the statements that she made, and that they were made in response to her mother's inquiry, clearly warranted admission. The statements related to a startling event or condition, while under the stress of excitement, and without the opportunity for deliberation or fabrication. Thus the trial judge's admission of this evidence was not an abuse of discretion.

Defendant asserts in point seven that his trial counsel's failure to cross-examine Amy constituted ineffective assistance of counsel. Although the argument is framed in terms of the Sixth Amendment right of confrontation, the issue is in substance one of ineffective assistance of counsel. Trial strategy by its nature includes the decision whether to examine a witness, even a victim. Hence we defer consideration of the point to a future post-conviction relief application. See State v. Preciose, 129 N.J. 451, 460 (1992).

In point nine, J.O. also contends that the trial judge's decision, after the Rule 104 hearing, to admit the videotaped statement biased him and was unduly prejudicial under N.J.R.E. 403 because the judge was also the trier of fact. J.O.'s further contention is that since the court itself expressed a concern over the danger of prejudice, J.O.'s counsel's motion for disqualification should have been granted. This argument also lacks merit.

The record indicates that the judge did not express reservations about his ability to impartially decide the trial issues. He asked whether there were reported decisions on the question of a judge conducting a bench trial after conducting a Rule 104 hearing regarding the admissibility of evidence. It is routine for judges to preside over preliminary matters requiring them to render partial findings, even if they subsequently preside over the full trial. That the judge watched the videotape twice, made findings about its admissibility, and heard Amy testify did not mean that he was biased or that the evidence had a prejudicial cumulative effect. Reviewing this decision on the admission of evidence under the abuse of discretion standard, we find no error. See N.J.R.E. 611(a).

It is well-established that judges sitting as factfinders are assumed to be "capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision-making process . . . ." State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999). Furthermore, that the judge addressed matters preliminary to the actual trial related to the juvenile's status, vis- -vis his continued placement with his family and expulsion from school, did not impermissibly taint the judge as the trier of fact or compel him to recuse himself. In sum, there was no prejudicial cumulative effect from the judge conducting both preliminary hearings and the bench trial, nor was there any basis for him to recuse himself as a result of having information regarding the juvenile's situation unrelated to the pending charges.

J.O.'s final point is that the cumulative effects of the errors in this case warrant reversal. See State v. Jenewicz, 193 N.J. 440, 473 (2008). Since we do not agree that any of the issues raised were indeed errors, we do not find there was a cumulative effect that warrants reversal.

Affirmed.

1 We use pseudonyms throughout.