STATE OF NEW JERSEY v. M.R.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NOT FOR PUBLICATION WITHOUT THE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.

M.R.P.,

Defendant-Appellant.

________________________________

September 5, 2014

 

Submitted March 19, 2014 - Decided

 

Before Judges Sapp-Peterson, Lihotz and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-09-1016.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief.)

 

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant M.R.P. was convicted by a jury of multiple counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14 2(a); second-degree sexual assault, N.J.S.A. 2C:14 2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24 4(a); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), of his two nieces, Beth and Alice.1 At the time of sentencing, the judge imposed an aggregate forty-year term of incarceration, with an aggregate thirty-four-year period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant claims he is entitled to a new trial based upon erroneous evidentiary rulings. In addition, he contends the sentence imposed is excessive.

Having carefully considered defendant's arguments in light of the record and applicable law, none of the evidentiary rulings about which defendant complains are sufficient, either individually or in the aggregate, to warrant reversal of his conviction. Nor does the sentence imposed shock the judicial conscience. We therefore affirm.

I.

These are the relevant facts, for purposes of this appeal, which we derive from the evidence presented at trial. In February 1998, eight-year-old Beth's mother, D.P., married defendant so that she and her two children, Beth and R.P., could emigrate from El Salvador to the United States. Defendant had already emigrated to the United States. He was a reporter, editor and photographer for a New Jersey newspaper. Several months following the marriage, defendant brought Beth to the United States. D.P. and R.P. did not accompany them due to legal complications with their paperwork. Defendant and Beth began living in Easton, Pennsylvania, where Beth claims the sexual assaults commenced.

Beth described defendant's initial acts as the two of them sitting on a couch at nighttime where they would cuddle. Over time, however, the conduct escalated to her lying naked on the couch, at his request, where he would then kiss her all over her body. Eventually, the conduct progressed to defendant's bedroom, where they played with each other unclothed. Specifically, she would straddle him until he ejaculated. He also started showing her pornography, some of which depicted children. Defendant told Beth not to tell anyone about their relationship, because "nobody else would understand" and he would get arrested. Beth did not tell anyone about their relationship because the two of them loved each other.

After living in Easton for approximately one year, defendant and Beth moved to New Jersey at the end of the school year. At that time, she had completed fourth grade. They began living with defendant's girlfriend M.P. That relationship did not last, but defendant and Beth continued to live in M.P.'s home, with defendant moving out of M.P.'s bedroom and sleeping in a downstairs bedroom next to Beth's bedroom. Approximately three times a week, when Beth was alone with defendant, he would engage in sexual activities with her. He touched her "everywhere," including her face, neck, buttocks, breasts, and vagina. He kissed her vagina, and she reciprocated by rubbing his penis and performing fellatio, which she learned from watching "lots' of child pornography.

In late October 2000, Beth's ten-year-old sister Alice came to New Jersey from El Salvador to visit Beth. She remained for about six months. She slept in Beth's room on the top bunk. Defendant commenced to engage in sexual acts with her as well, including performing cunnilingus. She felt confused by defendant's actions, but Beth told her it was okay. Alice did not tell anyone about defendant's conduct because she was embarrassed. On one occasion, when alone with defendant, she and defendant kissed and she performed fellatio on him. When M.P. came home, he told Alice to go to her bedroom and pretend to be asleep. On another occasion, defendant climbed up to her bed, while Beth was asleep, and rubbed his penis against her vagina until he ejaculated on her torso. Defendant also showed pornography to Alice.

Defendant's sexual abuse of Beth escalated to sexual penetration after he told her that Alice had allowed him to penetrate her. Beth wanted to make defendant proud of her and also felt a "little jealous" that Alice was now involved in their "special relationship." She and Alice discussed whether they should tell anyone about defendant's conduct, but decided to speak up only if defendant targeted their younger sister. They feared that no one would believe their allegations because defendant was "highly regarded in the family."

Defendant and Beth moved to Bushkill, Pennsylvania in 2003. The sexual abuse continued. After completing ninth grade, defendant and Beth moved back to New Jersey in 2004, where they remained. The sexual abuse continued, but beginning in 2005, Beth told defendant she no longer wanted to engage in sexual activity with him. Afterwards, he appeared depressed and was distant towards her, so she apologized and resumed the sexual relationship with defendant.

In January 2006, Beth e-mailed defendant, stating she hoped he was not angry at her for not wanting to engage in sexual relations anymore. In response, defendant wrote:

Beautiful, I'm not angry at you although I know it seems that I am. The truth is that I am resentful at what you have forced us to become. I think it's only human nature to react this way. After all, you're saying that our relationship and part of our beliefs were wrong. And you may be right, but I miss who we were. The worst part is that there is no happy ending. I'll be resentful if we continue, and if we go back, you will resent me. We knew this was not going to be our year. We were right. Love you, Poppy.

 

In February 2006, she wrote defendant a message in a Valentine's Day card:

To the resident of my heart. All I do I do it to make you proud, and I am always your little girl. To my Number 1 Valentine. Dear Poppy. I know I may not deserve another chance. I know I made a mistake, maybe one of the worst of my life. I will not give you excuses or explanations, but I will give you my promise to fix what I did. You're the most important person in my life although I may not have shown it, but I will fight for your and our relationship because it is that important. I will show that despite my stupidity, I know that you are my first, my last, my everything. I love you, Poppy. [Beth].

 

During the summer of 2006, defendant gave Beth a book, entitled Reading Lolita in Tehran: A Memoir in Books by Azar Nafisi. According to Beth, part of the memoir "compares the repression of the Iranian people . . . to the plot of . . . the book Lolita by Valdimir Nabokov, . . . [which concerns] a man who sexually abuses a [twelve]-year old and how he takes her identity from her by making her an object of his fantasy . . . ." Inside the book, defendant wrote: "To my beautiful. I know you'll never let a society guide your decisions. Always remember that you are your only truth. Love you always, Poppy."

In August 2006, then sixteen-year-old Beth went to El Salvador with defendant and school friends to complete a community service project and visit family. While there, Beth told her mother, D.P., that she no longer wished to live with defendant because they "weren't getting along." She didn t tell her mother the real reason why she didn t want to return to New Jersey with defendant, which was that she was "getting really sick of having to deal with [defendant] and having sex with him all the time." Additionally, she wanted independence, which, in her mind, did not involve serving as "some kind of weird wife." While D.P. was initially pleased about Beth's decision, she questioned whether moving back to El Salvador would inhibit her daughter's educational progress. Beth also e-mailed defendant about her decision, to which he responded that she was squandering a good opportunity.

When Beth returned to Mount Olive, New Jersey to gather her belongings, defendant "was very, very upset" and cried. Because defendant made her feel "[e]xtremely guilty[,]" she agreed to finish high school in the United States. Soon after that conversation, Beth said she and defendant had vaginal intercourse. After that, defendant told her "he wanted to try anal sex." Since Beth felt guilty about upsetting defendant, she agreed. After Beth told him he was hurting her, defendant took off his condom and switched to vaginal intercourse. After ejaculating on her torso, he wiped the semen with her soccer towel on the floor near the bed.

Alice testified that when she learned Beth had changed her mind about returning to El Salvador, she became upset. Out of frustration, she told D.P. what defendant had been doing. As a result, during the early morning of August 24, 2006, D.P., Alice, and other family members arrived in New Jersey and went to defendant's apartment to take Beth home to El Salvador. Beth cried, but felt relieved. She told defendant that she was sorry and gave him a hug and a kiss, to which he whispered in her ear that "[t]his is not the way to do it." To Alice, Beth acted like "[s]he didn't want to go back."

Afterwards, D.P. explained to Beth why she had arrived unannounced. While crying, Beth asked for her mother's forgiveness for not having told her about the ongoing course of conduct and sexual abuse. While acknowledging on cross-examination that she had ample opportunity to disclose the conduct and sexual abuse sooner, Beth explained that her fear of defendant's arrest, combined with the feeling she would not be believed, caused her to remain silent.

After being removed from defendant's home, Beth reported defendant's conduct and sexual abuse to the police, who arranged for vaginal and anal smears to be taken from her. Evidence seized from defendant's apartment, a condom and towel, tested positive for Beth's DNA.

The State presented expert testimony from Dr. Anthony D'Urso, a supervising psychologist at the Audrey Hepburn Children's House, on child sexual abuse accommodation syndrome (CSAAS), which addresses the distinct dynamics of behaviors that commonly occur in cases of child abuse: (1) secrecy, (2) helplessness; (3) entrapment and accommodation; (4) delayed, inconsistent disclosure; and (5) retraction or recantation. He explained that CSAAS is not a diagnostic tool, but rather an educational tool used to dispel the notion that only those children who immediately disclose sexual abuse actually suffered from it.

Defense counsel, in her opening statement to the jury, urged that the allegations were false and that Beth had many opportunities, away from defendant, to "confide in her mother that something was amiss," but did not do so until she became a rebellious teenager and "did not want the pressure that was put upon her in the States[.]" During cross-examination of Beth, defense counsel repeatedly elicited testimony from her of the numerous opportunities, away from defendant, where she could have told others about the sexual abuse, including a three-week vacation in Europe, during the spring of 2006, and her return to El Salvador in the summers of 2003 and 2005. In addition, defense counsel highlighted the affidavit Alice prepared expressing her desire not to be involved in the matter. Defense counsel pointed to these circumstances to support defendant's theory of the case, namely, the allegations were motivated by Beth's desire to get away from what she believed were the restrictions being imposed upon her while living in the United States, not because defendant had engaged in acts of sexual abuse.

II.

On appeal, defendant raises the following claims:

POINT I

 

UNCHARGED ACTS OF SEXUAL ABUSE ALLEGEDLY OCCURRING IN PENNSYLVANIA SHOULD NOT HAVE BEEN ADMITTED PURSUANT TO N.J.R.E. 404(B) BECAUSE THEY WERE MARGINALLY PROBATIVE AND POSED A TREMENDOUS RISK OF UNDUE PREJUDICE; MOREOVER, THE PREJUDICE WAS NOT SUFFICIENTLY MITIGATED BY THE LIMITING INSTRUCTION NOR WAS THERE PROPER SANITIZATION.

 

 

 

 

POINT II

 

WHERE DEFENDANT WAS ACCUSED OF COMMITTING "TENDER YEARS" SEXUAL ASSAULT BY DIRECTING ONE CHILD TO PERFORM CUNNILINGUS ON ANOTHER, AND WITHOUT CONTACT WITH DEFENDANT HIMSELF, LIABILITY UNDER N.J.S.A. 2C:14-1(B) CAN ATTACH ONLY THROUGH AN ACCOMPLICE THEORY OF LIABILITY; THUS, THE COURT'S FAILURE TO CHARGE ACCOMPLICE LIABILITY IS FATAL TO THE CONVICTIONS ON COUNTS SIX AND SEVEN (PARTIALLY RAISED BELOW).

 

POINT III

 

DEFENDANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY INTRODUCTION OF TESTIMONY THAT DEFENDANT HAD PLANS TO TAKE CUSTODY OF [BETH]'S YOUNGER SISTER SO THAT HE COULD SEXUALLY ABUSE HER AS HE HAD ALLEGEDLY DONE TO [BETH].

 

POINT IV

 
DEFENDANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY INTRODUCTION OF HEARSAY FROM [ALICE] THAT CORROBORATED THE SUBSTANCE OF [BETH]'S ALLEGATIONS.

 

POINT V

 

THE CUMULATIVE EFFECT OF ERRONEOUS ADMISSION OF UNDULY PREJUDICIAL EVIDENCE AND INSTRUCTIONAL ERRORS DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL, AND WARRANTS REVERSAL. (NOT RAISED BELOW).

 

POINT VI

 

THE FORTY-YEAR SENTENCE WITH TWENTY-FOUR YEARS OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.

 

A.

We turn first to defendant's claim that the judge erred when he permitted the jury to hear evidence of his alleged sexual abuse of the victims in Pennsylvania, failed to sanitize the evidence by allowing graphic detail, and improperly instructed the jury because the charge was overly broad. The State, during a N.J.R.E. 104 hearing, urged that the proffered evidence was "actually res gestae . . . because this case didn't just start in Mount Olive. It began in Easton . . . with defendant's acts of grooming [Beth] in order for him to ultimately be able to engage in sexual acts with her." In addition, the State argued that because defendant's theory was that "this case is a falsity on both [Alice's] and [Beth's] part, it is very relevant to what the full contact [sic] of . . . [Beth] and [Alice's] relationship was because at this point . . . [t]hey're being called liars."

The trial court agreed, as the State urged, that the evidence was relevant to show a continuing course of conduct and defendant's grooming of the victims. It concluded the probative value of the evidence was "extraordinary" because "the jury would be entirely confused if they did not have the full context and just heard what had happened in just a couple of years here in New Jersey." We disagree.

In State v. Rose, 206 N.J. 141 (2011), the Court analyzed the defendant's argument that he was denied a fair trial when the judge, over defendant's objection, admitted evidence that the defendant had been jailed for the attempted murder of the same person for whose murder he was presently on trial. Id. at 153 55. The State sought to justify the admission of that evidence, despite its highly inflammatory character, on the grounds that testimony from a fellow inmate that the defendant hired him to kill the victim was made more understandable if the fellow inmate was also permitted, as background, to explain that the defendant was then in jail for the attempted murder of the very same person. Id. at 153 54.

The State characterized the challenged evidence as res gestae. The Court invalidated the use of res gestae as an independent basis for the admission of other, uncharged bad acts when offered as background information helpful to the jury's analysis of the crimes charged in the indictment. Id. at 180 82. The Court reasoned that allowing evidence of uncharged prior bad acts under a res gestae theory "derail[s]" the rigorous strictures of N.J.R.E. 404(b). Id. at 182. In reaching that conclusion, the Court observed that the century-old res gestae doctrine had outlived its usefulness in light of the adoption of formal rules of evidence. Id. at 176. The Court held that "[w]henever the admissibility of uncharged bad act evidence is implicated," the admissibility of such evidence must be determined under a N.J.R.E. 404(b) analysis rather than a res gestae analysis. Id. at 179.

However, the Court created a narrow exception to this requirement. Id. at 177-78. The Court concluded that evidence that is "intrinsic" to the crime charged need be evaluated only under a standard of relevance analysis under N.J.R.E. 402, subject to the N.J.R.E. 403 balancing test. Ibid. In noting that "[t]he difficulty lies in determining what evidence is intrinsic," id. at 178, the Court adopted the definition applied by the Third Circuit Court of Appeals in United States v. Green, 617 F.3d 233, 248 49 (3d Cir.2010):

[W]e . . . reserve the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under Rule 404(b).

 

[Rose, supra, 206 N.J. at 180 (emphasis in original) (quoting Green, supra, 617 F.3d at 248 49, cert. denied, ___U.S.___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).]

 

In view of that test, proffered evidence related to the sexual abuse which took place in Easton and Bushkill, Pennsylvania, does not satisfy the Rose/Green definition of "intrinsic," as it does not "directly prove" events charged in the indictment, which occurred from 2004 to 2006. Consequently, the evidence of the sexual abuse occurring in Pennsylvania must be subjected to an N.J.R.E. 404(b) analysis. Id. at 179 80.

As the Court observed in Rose, the four-prong test established in State v. Cofield, 127 N.J. 328 (1992), remains the definitive standard for evaluating the admissibility of uncharged crimes. Id. at 159 60. The four Cofield factors are as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Cofield, supra, 127 N.J. at 338 (citation omitted).]

 

In determining whether the first prong of the Cofield test is satisfied here, we note that evidence of prior molestation is admissible on material issues such as access and feasibility, and to counter a claim of bias, such as that arising in the context of the so-called "vendetta defense." State v. G.V., 162 N.J. 252, 264 65 (2000). The only claim advanced by defendant here is that the victims had every opportunity to report the sexual abuse, but did not do so because the allegations were false and were motivated by Beth's desire for more freedom. Defendant portrayed Beth as a rebellious teenager, who, at sixteen, wanted freedom, which she thought she could have in El Salvador. The defense elicited testimony from Beth that she sneaked out to be with a boy during her summer visit to El Salvador in 2003, and that defendant was not pleased about this conduct on her part, so much so that she was not allowed to visit El Salvador the following summer. Additionally, Beth also admitted under cross-examination that she continued this friendship with the same boy when she returned to El Salvador in 2005.

Thus, by limiting the testimony to the sexual abuse occurring in New Jersey over a two-year period, a jury could reasonably infer that perhaps Beth's allegations were motivated by a desire for more social freedom. The evidence presented was therefore relevant to eschew the notion that allegations of sexual abuse were fabricated in response to the strict upbringing of this teenager. Thus, the materiality of the first prong was satisfied.

We are likewise satisfied that the second prong is met, as the evidence concerning the Pennsylvania incidents were unquestionably similar in kind to the offenses charged in the indictment. Moreover, the evidence of the Pennsylvania incident was reasonably close in time to the offenses charged in the indictment, which commenced in New Jersey beginning in 1999. According to Beth's testimony, once the sexual abuse started shortly after moving to Pennsylvania from El Salvador, in November 1998, it never stopped. As for the third Cofield prong, the trial court credited the testimony of the victims. As such, the evidence was clear and convincing. In light of its strong probative value to negate the notion that the allegations were simply the fabrications of a teenager who felt her life was too restrictive in the United States, the probative value of the evidence of the Pennsylvania incidents was not outweighed by its apparent prejudice, thereby satisfying the fourth prong. Thus, all four Cofield prongs were satisfied.

Moreover, even assuming, as defendant urges, the evidence was cumulative and unnecessary, because of the testimony on CSAAS, the testimony related to the sexual abuse committed in Easton was limited and not presented in graphic detail. With regard to the sexual abuse occurring in Bushkill, that evidence was sanitized because the prosecutor stayed within the bounds of permissible questioning agreed to by defense counsel, and the remaining testimony elicited related to time defendant and the victim were living in Bushkill, was not provide graphic details. Therefore, even if the court erred in admitting this evidence, it did not constitute harmful error, that is, error capable of producing an unjust result. R. 2:10-2; see also State v. Taylor, 350 N.J. Super. 20, 35 (App. Div. 2002).

B.

Defendant next claims the court's N.J.R.E. 404(b) limiting instruction was overly broad in that it stated the other-crimes evidence was relevant to defendant's "continuing course of conduct[,]" thus suggesting his propensity to commit crimes. We disagree.

At the outset, although defense counsel objected to the admissibility of the claimed acts of sexual abuse occurring in Pennsylvania, she did not object to the court's limiting instruction as to how the jury should consider this evidence. Therefore, we review the instruction under the plain error standard, namely, whether the instruction was clearly capable of producing an unjust result. R. 1:7-2; R. 1:7-5; R. 2:10-2. See also State v. Torres, 183 N.J. 554, 564 (2005).

The limiting instruction substantially tracked the other-crimes model jury charge. See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (June 4, 2007). The charge, as given, did not constitute plain error.

The jury must be told "'precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" State v. Marrero, 148 N.J. 469, 495 (1997) (quoting Cofield, supra, 127 N.J. at 341).

With respect to defendant's argument that the charge was overly broad because it implied his propensity to commit crimes by stating the other-crimes evidence was relevant to his "continuing course of conduct," we note the court linked "continuing course of conduct" to defendant's plan or scheme to obtain sexual gratification from the victims, which was not the reason the State sought to introduce this evidence. The State urged that the evidence was "res gestae," relevant to show how defendant was "grooming" Beth and enlisting her assistance in gaining access to Alice. The State explained it was necessary for the jury to "know what the full contact [sic] of Beth's and Alice's relationship was because at this point . . . [t]hey're being called liars, and it's relevant . . . to the jury to understand how the full relationship unfolded and particularly how the -- disclosure came forward."

While the reference to "plan or scheme" was incorrect, in the context of the overall limiting instruction to the jury, the error was harmless because the instruction fully explained the particular context in which the jury was to consider the evidence:

Now the State has introduced evidence through this witness that you've heard, that the defendant engaged in acts of sexual conduct with [Beth], specifically, acts of sexual . . . contact, rather, and oral penetration while she was under the age of 13 and residing in Easton, Pennsylvania.

 

The State has also introduced evidence that the defendant engaged in sexual conduct with [Beth], specifically, acts of sexual contact and sexual penetration while she was between the ages of 13 and 16-years-old and residing in Bushkill, Pennsylvania.

 

Additionally, the State has introduced evidence that the defendant also attempted to engage[] in acts of sexual conduct with [Alice] while she was between the ages of 13 to 16 and visiting the defendant and [Beth] in Bushkill, Pennsylvania.

 

Now these acts are not charged in the indictment, as they occurred outside the state of New Jersey. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered to show that he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged . . . offenses.

Now before you can give any weight to this evidence, you must be satisfied that the defendant committed the other act. And if you are not so satisfied, you may not consider it for any purpose.

However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for specific or certain specific, narrow purposes.

 

In this case the evidence of sexual acts that occurred in Pennsylvania has been admitted to establish a continuing course of conduct on the part of the defendant, which represents a plan or scheme to obtain sexual gratification[] from the victims.

 

Further, it is submitted to you for the purpose of understanding the manner in which the sexual relationship progressed and to put the evidence of the acts in New Jersey in context.

It further is relevant to how or why [Beth] did not reject the defendant's advances when she was older.

 

Now whether this evidence does in fact demonstrate . . . an ongoing course of conduct and a plan or scheme to obtain sexual gratification is for you to decide. You may decide that the evidence does not demonstrate an ongoing course of conduct and a plan or scheme to obtain sexual gratification and, therefore, is not helpful to you at all. In that case you must disregard the evidence.

 

On the other hand, you may decide that the evidence does demonstrate an ongoing course of conduct and a plan or scheme to obtain sexual gratification and use it for that specific purpose.

 

However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is . . . a bad person. That is, you may not decide that just because the defendant has committed other crimes, wrongs or acts, he must be guilty of the present crimes.

Now I have admitted the evidence only to help you to decide the specific question of whether or not there was an ongoing course of conduct and a plan or scheme to obtain sexual gratification.

 

Further, it is submitted to you for the purpose of understanding the manner in which the sexual relationship progressed, and to put the evidence of the acts in New Jersey in context.

 

It is further . . . relevant . . . as to how or why [Beth] . . . did not reject the defendant's advances when she was older.

 

You may not consider it for any other purpose. And you may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts.

 

Finally, the court repeatedly cautioned the jury not to use the other crimes evidence to establish criminal predisposition on the part of defendant. We presume the jury followed the court's instructions in this regard. State v. Loftin, 146 N.J. 295, 360 (1996).

C.

Defendant advances two additional challenges to testimony elicited during trial, which he challenges for the first time on appeal by urging that the court, sua sponte, should have disallowed this evidence. First defendant claims the court erred in permitting Beth to testify about defendant's alleged plan to sexually abuse her younger sister. Defendant asserts this evidence violated N.J.R.E. 404(a), which addresses the impermissible use of character evidence and N.J.R.E. 404(b), prior bad acts. Second, the court permitted Beth's mother, D.P., to testify about what Alice told her concerning defendant's actions. We conclude both challenges are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2).

Beth's testimony about defendant's alleged plan to sexually abuse her younger sister was admitted to explain how defendant was able to persuade Beth to remain in the United States after she told him about her plan to return to El Salvador. Thus, the testimony was not introduced to disparage defendant's character. Nor did the evidence qualify as other crimes or wrongs, since Beth's subjective belief that defendant would sexually assault N.P., if given a chance, is not an other crime or wrong, because it never occurred.

While D.P.'s testimony regarding her conversation with Alice after Beth decided not to return to El Salvador was an out-of-court statement, it was not being offered to prove the truth of the matter Alice asserted in her statement. See State v. Long, 173 N.J. 138, 152 (holding that "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial"). Moreover, at the time D.P. testified, the jury had already heard Alice's testimony about the substance of her conversation with D.P., and defendant had the full opportunity to cross-examine Alice in this regard.

III.

For the first time on appeal, defendant argues the jury should have been instructed on accomplice liability on counts six and seven of the indictment charging him with second-degree sexual assault upon Alice by directing Beth to perform sexual contact upon Alice for the purpose of sexually arousing or gratifying him and/or humiliating or degrading Beth and Alice. Specifically, he contends the charge was warranted because he was neither the victim nor principal actor and because neither girl touched herself. However, "accomplice" is defined in terms of another actor. See N.J.S.A. 2C:2-6(c).

N.J.S.A. 2C:2-6(c) provides in pertinent part that a person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense; he causes an innocent or irresponsible person to engage in such conduct;

 

(a) Solicits such other person to commit it;

 

(b) Aids or agrees or attempts to aid such other person in planning or committing it; or

 

(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

 

(2) His conduct is expressly declared by law to establish his complicity.

 

Defendant did not act as an accomplice because he was the only actor that committed the offenses, and he was the only participant four years older than the victims, who were both younger than thirteen-years-old at the time he is charged in the indictment with committing those offenses. See N.J.S.A. 2C:14-2(b); see also N.J.S.A. 2C:14-1(a) (defining actor as "a person accused of an offense proscribed under this act"). Furthermore, defendant's main defense was that the victims fabricated the alleged sexual conduct and abuse. In general, accomplice liability instructions are unwarranted, and the failure to provide them does not amount to error where, as here, defendant alleges no involvement in the crime and the State only prosecuted the crimes against him as a principal. See, e.g., State v. Crumbs, 307 N.J. Super. 204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). Thus, because there was no rational basis in the evidence to convict defendant as an accomplice, we do not need to address whether N.J.S.A. 2C:14-1(d) encompasses circumstances where the actor forces the victims to touch each other's intimate parts.

IV.

Defendant's remaining claims that the cumulative errors committed by the court warrant reversal and the aggregate forty-year custodial sentence imposed with a thirty-four-year period of parole ineligibility are with insufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add the following brief comments.

There were no errors in the evidentiary rulings. The reference to plan and scheme in the court's limiting instruction on the use of the uncharged acts of sexual abuse committed in Pennsylvania does not meet the plain error standard, as discussed previously. R. 2:10-2.

The sentence imposed does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The judge found three aggravating factors: (1) the nature and circumstances of the offense including whether it was committed in an especially heinous, cruel, or depraved manner, N.J.S.A. 2C:44-1(a)(1); (2) the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and (3) the need to deter, N.J.S.A. 2C:44-1(a)(9). The judge additionally found two mitigating factors: (1) no prior history of delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7); and (2) excessive hardship resulting to defendant from imprisonment, N.J.S.A. 2C:44-1(b)(11). After weighing the aggravating and mitigating factors, the judge determined that the aggravating factors substantially outweighed the mitigating factors. These findings are supported by substantial credible evidence in the record.

Affirmed.

 

1 To protect the privacy of the victims, fictitious names and initials are utilized.