STATE OF NEW JERSEY v. G.P.

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NOT FOR PUBLICATION WITHOUT THE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.

G.P.,

Defendant-Appellant.

_____________________________

June 3, 2014

Argued October 9, 2013 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-02-0138.

Paul Casteleiro argued the cause for appellant.

Paula C. Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Erin Smith Wissloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

By leave granted, the State appeals an order denying its application to admit fresh complaint evidence at the trial of defendant G.P. G.P. is charged in an eighteen-count indictment with sexual crimes committed against Alice a fictitious name we have assigned. Alice is the daughter of a woman with whom G.P. resided when most of the alleged crimes were committed, between 1986 and 1995. For all but three of those years, Alice was under the age of thirteen. The pending charges are: seven counts of first-degree sexual assault; eight counts of second-degree sexual assault; and three counts of second-degree endangering the welfare of a child. Alice first reported the crimes to the police on November 2, 2009, about fourteen years after the abuse ended and when she was about thirty years old.

The fresh complaint evidence the State seeks to introduce is a conversation between Alice and her friend Freda, also a fictitious name we have assigned, that they had when they were in the eighth grade and about thirteen years old. The trial judge conducted a hearing on the admissibility of Freda's fresh complaint testimony at the State's request pursuant to N.J.R.E. 104. Although the State elicited Freda's testimony about conversations Alice and Freda had prior and subsequent to their eighth grade conversation, when the judge asked the assistant prosecutor to identify the testimony the State sought leave to present at trial, she acknowledged that the conversations the girls had "leading up to the conversation that [they] had in eighth grade would be too broad and perhaps too vague to take before the jury." Additionally, the assistant prosecutor advised the judge that "the State would not be looking to introduce" through Freda things that Freda learned afterwards in more detail.

The State's brief on appeal does not refer to the foregoing concessions. Indeed, the State does not identify the testimony it claims the judge should have admitted with any precision. In accordance with our practice of declining to consider claims not presented to the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we consider only the question as framed by the State's representative in the trial court that is, the admissibility of Freda's testimony about the eighth grade conversation for the limited purpose of establishing a fresh complaint.

Freda's testimony can be summarized as follows. Freda moved to the town where Alice lived when she was eleven years old, and they were in the same classes. They quickly became best friends, and Alice often came to Freda's home after school. Freda's parents did not permit her to go to other children's homes, and she had never been to the home where Alice lived with her mother and G.P. Freda and Alice remained close friends over the years, and when Alice went to the police in 2009, Freda went with her and was present when an officer interviewed Alice. Indeed, Freda claimed that she had been urging Alice to report G.P.'s conduct since they were in their twenties.

Freda's recollection of the eighth grade conversation was dim. She said she was "sure" she asked Alice questions, but she did not recall the "exact questions." She did, however, recall asking Alice how she felt and trying to comfort her.

Freda gave the following testimony about the eighth grade conversation that took place in Freda's bedroom: "We were in [the] eighth grade and [Alice] was about to have sex with her current boyfriend for the first time and it was also going to be his first time, and she was upset that it wasn't really going to be her first time, but he believed it would be." According to Freda, Alice was crying and shaking during that conversation.

The assistant prosecutor asked Freda if she knew, "prior to that conversation" that Alice "had had sex before." Freda said she had known. But Freda noted, "I do not recall the exact conversation, but I do remember knowing that I knew, you know, she already had sex." Following up, the prosecutor asked, "You're saying that you already knew about the relationship that she had . . . the sexual relationship she had with" G.P.? Freda answered: "We were having the conversation because I was already privileged to the secret that she wasn't having sex for the first time."

On further questioning, Freda referred to Alice's request to switch Alice's underwear for Freda's fancier underwear when they were in sixth grade so Alice could show that fancy underwear to her boyfriend. They had the conversation in the school's locker room when they were in the sixth grade. Freda said: "I know with the underwear and bras it was implied that [Alice] had done it." In response to a request for what Alice said to make Freda believe that Alice "had done it," Freda said: "I do not remember, but I remember it was something I just, I knew. You know, I knew not to tell anyone, and I knew that she had a relationship with her mother's boyfriend." Freda further explained, "I had a crush on boys in my grade and [Alice's] crush boyfriend was a gentleman much older." Freda said that those were the words Alice used in the locker room and explained, "I believe that I knew who the underwear and bra were for that she wanted to borrow." Freda also said, however, that Alice did not specifically tell her who the underwear was for "at that moment."

In response to further questioning about when she knew about Alice's conduct with G.P., Freda explained that it "must have been in seventh grade" "because by eighth grade, I had known." Freda did not know "exactly" when she was told it was G.P. Elaborating, Freda said: "I just knew that that was the guy she [had] a crush on, that [G.P.] was the guy she talked about." Freda noted that she and Alice had been talking about "it" for twenty-two years and stressed that by eighth grade she knew the man with whom Alice was "doing it" with was G.P. Freda further indicated that Alice had not given her a "detailed description" of the sexual conduct until Freda "was older."

Redirecting Freda's attention to the eighth grade conversation about Alice's plan to have sex with a contemporary, the prosecutor asked, "At that point did she tell you who her first had been?" Freda said, "Yes." Freda named defendant when the prosecutor asked "Who did she tell you her first had been?" Freda noted, "It was information I already knew, though."

On cross-examination, Freda acknowledged that she and Alice had "thousands" of conversations about G.P. over the years. On re-direct, however, she explained that her testimony had been limited to what she remembered about the conversations she had when they were children, not those they had in later years. The trial judge set forth his findings and reasons in a written opinion of December 28, 2012.

At the hearing on December 6, 2012, the State conceded that [Freda]'s testimony about the alleged conversations she had with [Alice] in a school locker room in sixth grade were not admissible as fresh complaint evidence. [Freda]'s testimony established that she could not recall [Alice] telling her anything about any sexual acts during the sixth grade conversation. [Freda] also testified that she could not recall [Alice] telling [Freda] that [Alice] was having any type of relationship with [G.P.] Indeed, [Freda] testified that [Alice] never mentioned [G.P.] by name or description during the sixth grade locker room conversation.

The State also concedes that it cannot offer testimony from [Freda] concerning general information she may have learned over a course of her friendship with [Alice]. Instead, the State seeks to introduce as fresh complaint evidence, [Freda]'s testimony about one conversation: the conversation [Freda] and [Alice] had in eighth grade in [Freda]'s bedroom.

The State argues that [Alice] was approximately [thirteen] years old at the time of that conversation and that the disclosure was to [Freda], a friend and someone [Alice] would ordinarily turn to for support. Furthermore, [Alice] is also alleged to have voluntarily discussed the sexual relationship with [Freda]. Accordingly, the State contends that [Alice]'s statements were not made in response to coercive questioning; rather, [Alice] willingly provided information to a friend.

There are at least three fundamental problems with the State's position and those problems preclude [Freda] from testifying concerning a fresh complaint.

The first problem with the State's position is that [Freda] had no specific memory of what was actually discussed with [Alice] and, just as importantly, when it was discussed. [Freda] was clear in her testimony that she does not recall specifics of the conversation that she had with [Alice] in the eighth grade. In that regard, [Freda] acknowledged that she does not recall [Alice] telling her that [Alice] had or was having sex with [G.P.] during the eighth grade conversation. Instead, [Freda] testified that she knew before the eighth grade conversation that [Freda] was having sex with [G.P.]. Freda consistently testified, however, that she could not recall when [Alice] told her about the sexual relationship with [G.P.]. [Freda] also testified that she could not recall any details about such a conversation. In that regard, [Freda] testified that she merely, "understood" that [Alice] was having a sexual relationship with [G.P.], but she candidly acknowledged that she could not recall [Alice] giving her any details of the relationship nor could she recall any specific conversations during which [Alice] told her that [Alice] was having sex with [G.P.].

Consequently, in this case, the conversation between [Freda] and [Alice] cannot be properly analyzed to see if it is a fresh complaint. [Freda] cannot recall what [Alice] said about [G.P.]. [Freda] also cannot recall when [Alice] said anything about sexual relationships with [G.P.]. Without that type of detail, the [c]ourt cannot analyze whether [Alice's] statements were spontaneous or voluntary or made within a reasonable time after the alleged abuse. See State v. Hill, supra, 121 N.J. at 163.

The second problem with the eighth grade conversation is that it took place seventeen years before [Alice] contacted law enforcement. The conversation between [Alice] and [Freda] took place when they were [thirteen] years old. [Alice] first complained to law enforcement in November 2009, when she was [thirty] years old. While for [five] of those [seventeen] years, [Alice] was a minor, for [twelve] of those years, [Alice] was an adult. Thus the flexibility used in cases involving children does not clearly apply to this case. . . .

The third problem in allowing any testimony from [Freda] is that it could be very misleading to a jury. Under the fresh complaint doctrine, the State is not permitted to offer details of the complaint, and the testimony should be limited to the general nature of the complaint. See State v. Hill, supra, 121 N.J. at 163. In this case, however, [Freda] cannot recall the details. Thus, if she were allowed to testify as to the general nature of the complaint, the jury could assume that she did recall the details, but just was not being permitted to testify to those details.

The last point also highlights an independent ground for excluding [Freda]'s proffered testimony. Because Freda cannot recall the specifics of her conversation with [Alice], such testimony could be substantially more prejudicial than probative. Under N.J.R.E. 403, [Freda]'s testimony should be excluded. Fresh complaint testimony is not offered to prove the truth of the sexual allegations. See State v. Bethune, 121 N.J. at 147-148. Instead, fresh complaint evidence comes in for the limited purposes of negating an inference that the victim failed to timely complain of the alleged abuse. Id.; see also State v. Hill, supra, 121 N.J. at 152. Accordingly, by definition, fresh complaint evidence has limited probative value. In this case, to allow [Freda] to testify would involve a strong likelihood of substantial prejudice. The testimony of [Freda] at the fresh complaint hearing establishes that [Freda] has formed views over the [twenty-three] years of her friendship with [Alice]. Because [Freda] has no specific memory of [Alice] disclosing the alleged abuse, her view shaped over [twenty-three] years could affect her general non-specific testimony. Thus, the jury could not determine whether [Freda] was testifying about a specific alleged fresh complaint or whether her testimony was shaped by her [twenty-three] year relationship with [Alice]. More specifically, it would be difficult to properly limit [Freda]'s testimony to the legitimate purpose of fresh complaint evidence.

For all the reasons set forth in this statement of reasons, the [c]ourt will deny the State's motion and will not permit [Freda] to testify at trial concerning any alleged fresh complaint. Accordingly, as all statements made by [Alice] to [Freda] are hearsay, and there is no applicable exception to the hearsay rule, all such statements will be precluded as hearsay.

In making this ruling, the [c]ourt notes that defense counsel will need to be careful in cross-examining [Alice] or defense counsel may open the door to rebuttal testimony. For example, should defense counsel seek to broadly cross-examine [Alice] that she never made a complaint about the alleged sexual abuse by [G.P.] prior to November 2009, such questioning could open the door where the State would be permitted to offer rebuttal testimony from [Freda].

The governing legal standards are clear. The admissibility of fresh complaint evidence is "committed to the sound discretion of the trial judge." State v. W.B., 205 N.J. 588, 616 (2011). Accordingly, as with other evidentiary rulings, we should reverse "only where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295, 357 (1996) (quoting State v Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102, L. Ed.2d 803 (1989)).

"[T]o qualify as fresh complaint, the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." State v. Hill, 121 N.J. 150, 163 (1990); accord W.B., supra, 205 N.J. at 616. As the foregoing statement of the rule indicates, the time period at issue is the one between the date of the sexual conduct and the date of the victim's statement to a confidant, not the time between the conduct and the lodging of a complaint with the authorities. Hill, supra, 121 N.J. at 163; see, e.g., State v. Tirone, 64 N.J. 222, 226 (1974). Nevertheless, courts considering a child's disclosure of sexual abuse to a confidant take a flexible approach in assessing the reasonableness of the time passed between conduct and disclosure because of children's "reluctance . . . to report . . . and their limited understanding of what was done to them." State v. P.H., 178 N.J. 378, 393 (2004).

"[T]he fresh complaint rule was developed to counteract the persistent 'timing myth' that victims of sexual assault would cry out and alert others to the crime." W.B., supra, 205 N.J. at 616 (quoting P.H., supra, 178 N.J. at 392). Accordingly, fresh complaint testimony has limited relevance "to allow the State to meet in advance the negative inference which would be drawn from the absence of evidence that the victim reported the incident to one to whom she would naturally turn for comfort and advice." State v. J.S., 222 N.J. Super. 247, 256 (App. Div.), certif. denied, 111 N.J. 588, 589 (1988). Absent the showing required for admission of fresh complaint statements for the truth of the matter asserted, see, e.g., N.J.R.E. 803(c)(2) or N.J.R.E. 803(c)(27), they are relevant, and therefore admissible, for that limited purpose "'to negative the supposed inconsistency of silence by showing that there was not silence.'" State v. Bethune, 121 N.J. 137, 146 (1990) (quoting 4 Wigmore, Evidence (Chadbourne, rev. 1972) 1136 at 307). It is not admissible to "bolster the victim's credibility or prove the underlying truth of the sexual assault charges." Id. at 148. Indeed, judges must instruct that fresh complaint testimony cannot be used to "'bolster the victim's credibility or prove the underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent.'" P.H., supra, 178 N.J. at 393 (quoting Bethune, supra, 121 N.J. at 148).

Nevertheless, evidence of the context of the disclosure and enough content to give rise to an inference of non-silence is required. The gist of admissible fresh complaint testimony is "'the fact of the complaint, but the fact only. That the [victim] complained of [the conduct alleged] is all that principle permits, the further terms of her utterance (except so far as to identify the time and place with that of the one charged) are . . . immaterial for the purpose . . . .'" Bethune, supra, 121 N.J. at 146 (quoting 4 Wigmore, Evidence (Chadbourne, rev. 1972) 1136 at 307).

Considering the judge's decision in light of the foregoing principles governing our review and the admissibility of fresh complaint testimony, we find no basis for intervention. A fair reading of the reasons the judge provided supports exclusion of the evidence.

As we understand the judge's decision, the first and third problems he identified go to the fact that the State did not establish a "fresh complaint" through Freda's testimony about the eighth grade conversation, which was the only conversation the State sought to admit. As noted above, the showing necessary to negative the inference of silence is a reasonably timely disclosure of conduct charged. In our view, the judge's finding on Freda's lack of detailed recollection is best understood as referring to the inadequacy of Freda's recollection of what Alice conveyed about the complaint, not, as the State argues, about the lack of inadmissible details about the sexual conduct at issue. In short, the judge excluded the evidence because Freda could not say how, why or when she came to understand that Alice was talking about defendant during the eighth grade conversation. It was that deficiency, rather than lack of detail about the sexual conduct, that the judge found wanting.

Details about the circumstances under which the disclosure was made and the fact that there was a complaint about at least some conduct charged is required. Freda provided details about Alice being upset that the sexual encounter she contemplated with her eighth grade boyfriend would not be her first. Without any ability to explain when and how Freda came to know that the reason for Alice's concern was attributable to an encounter with defendant, Freda's testimony included nothing that would permit a jury to draw the inference of non-silence with respect to the conduct charged.

The State's focus on Freda's clear recollection of Alice's demeanor when she expressed her concern about the sexual experience she was contemplating not being her first misdirects the inquiry. The pertinent question is whether Freda had an adequate recollection of what Alice told Freda about defendant's conduct during that conversation that led Freda to conclude that defendant's conduct was the cause of Alice's concern. Thus, the trial judge was not wrong in concluding that Freda's testimony lacked adequate detail to establish a fresh complaint.

The State misses the mark when it argues that the judge's reasoning about detail was wrong. Freda's testimony simply did not provide a basis for her to assert that Alice was complaining about having her first sexual experience with defendant. In the words of the trial court, Freda's "general and non-specific testimony" about defendant's conduct with Alice suggested her recitation of "views" Freda had "shaped over [twenty-two] years" and many conversations that defendant was the "guy" and the older gentleman with whom Alice had prior sexual experiences.

Based on the judge's findings about Freda's testimony on the nature of the complaint that Freda was able to recall, we affirm the judge's decision to exclude the testimony. Although the State is correct in noting that the judge erred in focusing on the lapse of many years between the eighth grade conversation, the inadequacy of Freda's testimony linking Alice's conduct with defendant to the concerns Alice shared with Freda in the eighth grade was enough to require exclusion of this fresh complaint evidence. In short, the judge's erroneous conclusion about the relevant time period does not undermine the propriety of the ruling, which by virtue of the State's concessions was limited to admission of Freda's testimony about the eighth grade conversation.

We further note that the judge's ruling on the fresh complaint testimony does not leave the State at an unfair disadvantage. First, the judge did not foreclose the State from presenting Freda's testimony in rebuttal if defendant opened that door. Second, unless the judge finds that Alice's silence as a child is irrelevant, the judge must, on request from the State, "instruct the jury not to consider it evidence weighing against the credibility of the child, because silence is one of the many ways a child may respond to sexual abuse."

Bethune, supra, 121 N.J. at 148.

Affirmed.