STATE OF NEW JERSEY IN THE INTEREST OF W.M.

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NOT FOR PUBLICATION WITHOUT THE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 W.M.,

a juvenile.

July 23, 2015

Submitted April 22, 2015 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FJ-13-1367-13, FJ-13-1368-13, FJ-13-1369-13, FJ-13-1370-13.

Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

W.M., who was twenty-four years old when tried, appeals his adjudications of delinquency and January 9, 2014 sentence. Four separate juvenile complaints, consolidated for a single bench trial, were filed against W.M. If tried as an adult, the offenses would have constituted: (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree child endangering, N.J.S.A. 2C:24-4(a), as to J.D. (Complaint No. 1367); (2) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:142(b), and third-degree child endangering, N.J.S.A. 2C:244(a), as to K.Z.R. (Complaint No. 1368); (3) second-degree attempted sexual assault, N.J.S.A. 2C:5-1, and third-degree child endangering, N.J.S.A. 2C:24-4(a), as to K.R. (Complaint No. 1369); and (4) fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and third-degree child endangering, N.J.S.A. 2C:24-4(a) as to K.R. (Complaint No. 1370).1

After appropriate mergers, the court imposed an aggregate sentence of two years of incarceration: nine months on the aggravated sexual assault of J.D., a consecutive nine months on the aggravated sexual assault of K.D.R., and a consecutive six months on the attempted sexual assault concurrent to six months on the sexual assault of K.R. The judge stayed service of the sentence pending appeal. After our review of the trial record and consideration of the issues raised on the appeal, we affirm the adjudications and the sentence. We vacate the stay of service of the sentence.

I

Prior to trial, the State filed a motion seeking consolidation of the complaints. The trial judge heard argument on the motion, rendering an oral decision from the bench on September 11, 2013, granting the State's application.

At trial, the State presented the testimony of J.D.'s football coach, the victims and their father, and the police officer who took W.M.'s Mirandized2 statement. W.M. testified, and presented the testimony of family members. We derive the relevant circumstances from that evidence.

J.D.'s football coach said that on September 15, 2012, as was his usual practice, he showed all his players a film of the prior day's game. As he was addressing J.D. about "not being physical enough in the game the previous night," J.D. began to weep uncontrollably. Having never seen him react that way, the coach stopped the meeting and asked J.D. to step outside with him. J.D. then told the coach that he had been raped by his cousin, W.M., who "was bigger than him and he couldn't fight him off." He also told him the incident occurred at his grandmother's house when he was "younger" and that his cousin said he must not tell anyone or otherwise he would kill him. The coach told J.D. to go home and tell his family, then the coach immediately contacted the police.

When J.D. testified, he explained that days prior to the disclosure to his coach, he attended a family party at his aunt's house. W.M., whom he had not seen for several years and had just been discharged from the Army, said to him "you got big as hell," and slapped him on the arm and his "butt." When he did so, J.D. went into shock and said memories of the past flooded back.

J.D. remembered that when he was approximately six years old, he and W.M., who was seven years older, were at his grandmother's house. W.M. was playing video games, and J.D. asked if he could play as well. W.M. told him he could as long as he sat on his lap. As he sat on his lap, W.M. "slowly started grinding" on him. As J.D. continued to play the video game, W.M. told him he could only continue if he would pull his pants down. Although J.D. "thought it was weird," he complied. When he did so, and sat back down on W.M.'s lap, he heard a sound from W.M.'s belt buckle and felt something poke him. W.M. told him to "relax, relax, it's fine."

J.D. said because of his age, he just thought this was normal behavior although it "felt weird." After he played the video game a while longer, W.M. told him to bend over the bed. When he did so, J.D. asked him to stop, and asked him what he was doing. W.M. told him, "no, no, relax, relax, it's fine, it's fine." Although J.D. was very uncomfortable and in pain, as W.M. had removed his underpants and was anally penetrating him, W.M. "kept doing it." He finally stopped, and told J.D. to place his mouth on his penis. J.D. refused, at which point W.M. turned him over and proceeded to penetrate him. After W.M. stopped, he told J.D. that he could "play all the games" he wanted.

J.D. said when he went home later that day, his older half-sister K.R. saw him as he was about to step into the shower. She immediately asked him what was wrong, and saw that there was something wrong with his buttocks area. When she saw it, she asked him "did [W.M.] do this to you?" Even though J.D. denied it, she knew he was lying and called in K.Z.R., his other older half-sister. J.D. heard K.R. tell K.Z.R. that W.M. had done "the same thing" to J.D.

W.M. assaulted J.D. a second time at his grandmother's house. J.D. recalled he was at his grandmother's house to see N.D., a third older sister who was visiting from Florida. W.M. called J.D. into another room, pulled down his pants and his own, and penetrated him again. After the incident, he let J.D. go back to N.D. When W.M. returned, he joked and laughed that he had asked J.D. to "scratch his butt."

J.D. never reported the incidents to anyone because he was frightened and "didn't want any trouble." He was extensively cross-examined regarding his age at the time of the assaults and his inability to pinpoint the events other than that they happened when he was approximately six or seven years old. J.D. did not even remember the grade he was attending at school when the assaults occurred.

K.Z.R., who was twenty at the time of trial, testified that one summer when she was nine, she attended a family barbecue at their grandmother's house. While she was hiding in her grandmother's basement during a game of hide and seek with her cousins, W.M. called her into the bedroom where his mother stored some of her belongings. W.M. closed the door to the bedroom, sat on a wooden chair, and asked K.Z.R. to perform fellatio upon him. She refused but he kept urging her. Finally, W.M. pushed K.Z.R. against the bed and pulled down her pants. W.M. attempted to penetrate her anus with his penis, which made her scream.

W.M. put his hand over K.Z.R.'s mouth while telling her not to be loud. He told her not to say anything because she would "regret it." K.Z.R. believed the sexual assault lasted several minutes and eventually she was able to flee. When she went outside, her sister K.R. asked her what W.M. had done, as she had heard W.M.'s belt unbuckle.

Before the assault, W.M. had complimented K.Z.R. on her outfit. Since then, she has changed the way she dresses, attempting to cover up because, as she said, she

could not wear woman clothes and be comfortable without thinking of a man being disgusting. I thought that if I were to dress like that again, try to present myself, look nice, that that will happen again with somebody else. . . . I don't like to give anybody a reason to look at me. It was it changed it was an experience that changed my life.

K.Z.R. told no one about the incident until K.R. spoke about it years later. She only disclosed the assault to the police when J.D. made his disclosure. K.Z.R. was extensively cross-examined regarding the layout of the house and the identity of others present when the event occurred.

K.R., the oldest sibling who testified, recalled being approximately eight years old and watching TV, by herself, on the living room couch at her grandmother's house during a family get-together when W.M. sat next to her. He held a pillow on his lap, grabbed her right hand, and put it beneath the pillow to attempt to have her touch his penis. On cross-examination, K.R. was pressed regarding the fact that in her written statement she said W.M. sat on her left side, not her right side. K.R. said that W.M.'s penis was "hard" and he was attempting to have her move her hand up and down quickly. After a few seconds she just ran away.

Thereafter, W.M. would make efforts to touch K.R. or "grind on" her whenever they saw each other. One day when she was twelve or thirteen years old, while her parents were working, she stayed home from school to wait for the cable installer. W.M. came to the door and told her that her stepfather, J.D.'s father and W.M.'s uncle, had asked him to come and check on her. K.R. immediately went upstairs towards her bedroom and W.M. followed. She told him to leave her alone, but he nonetheless entered her bedroom. K.R. then told him again to leave her alone and walked into her mother's bedroom. W.M. pushed her onto the bed, pulled down her pants, and attempted to have anal intercourse with her.

K.R. ran downstairs, called her mother, and told her what had happened. K.R. said that later that day the adults, her step-father, mother, and W.M.'s mother, all met at her house to discuss the incident, which was not reported.

K.R. also remembered a time when the cousins were playing hide-and-seek at her grandmother's and she saw K.Z.R. and W.M. go into a weight room. When she went to the door, she heard noise that sounded like her "sister's belt like dangling." When she knocked on the door and tried to enter, it was locked. When she finally gained entry, her sister said nothing to her about what had occurred, but her belt was undone and K.R. knew something was wrong.

K.R. also recalled J.D. telling her that W.M. had pushed him onto the bed and attempted to penetrate him. She recalled her brother was crying, afraid, and had a "mark on his butt." K.R., like the others, could not specify dates. She was extensively cross-examined regarding the layout of the house and the presence of others in the home.

J.D.'s father, who was K.Z.R. and K.R.'s step-father, testified that during the relevant timeframe, the family frequently spent time at the grandmother's home while the children played together in and outside. He described the interior and recalled that there were electronic games in the house. As to the assaults, the father testified only that K.R. told him that W.M. had "tried to kiss her or something like that[,]" and denied remembering anything else.

When shown the written statement he signed when interviewed by police, the father then remembered that K.R. had told him that on the day she stayed home from school to wait for the cable installation, W.M. had "jumped on top of her," and attempted "to have sex with her." The family did not report the matter to the police.

After W.M.'s motion for directed verdict was denied, defense counsel presented five witnesses. Four of the witnesses were family members who essentially testified that the layout of the grandmother's home as described by the victims was false, and that at the time J.D. claimed he was raped there were no video games in the house. No other cousins at any time had complained that W.M. sexually molested them.

On the stand, W.M. categorically denied the charges. He denied that he had even been living at his grandmother's house during the timeframe in which these events were alleged to have occurred. While testifying, he repeated his claims that K.Z.R. and K.R. were troubled people with whom the family had never gotten along.

The trial judge found the State's witnesses to be wholly credible. He observed that J.D.'s demeanor was "more than convincing," and was in fact "compelling." J.D. spoke in hushed tones, his eyes filled with tears, and he was visibly embarrassed. That there may have been some inconsistencies in J.D.'s testimony with regard to minor details did not detract from its persuasiveness.

Similarly, the judge found K.Z.R. to be credible as well. Although she did not become emotional on the stand, she explained that she "dress[ed] like a man so as not to be attractive, having received compliments on how she looked just prior to the incident."

With regard to K.R., the judge agreed there were minor inconsistencies in her testimony such as whether W.M. tried to get her to fondle him with her left hand or her right hand. He noted that she began to cry "almost from the outset" of her testimony. The judge also observed that although not necessary to the State's case, no one suggested any motive for these victims to make false claims.

The judge said that while none of the family members who testified about the layout of the grandmother's home, and where people lived at different times, made "intentional misrepresentations," he was not convinced by their recollections. This included their testimony about details such as the layout of furniture or whether there were pillows on the living room sofa. He further questioned the grandmother's credibility because she acknowledged babysitting J.D. as an older child, but denied babysitting him when he was six. Having found the three victims' testimony to be credible, and discounting that of the juvenile defendant and his witnesses, the judge concluded that the statutory elements to the offenses had been met beyond a reasonable doubt.

On appeal, W.M. raises the following points for our consideration

POINT I: THE FOUR COMPLAINTS SHOULD NOT HAVE BEEN JOINED.

POINT II: THE STATE FAILED TO PRESENT SUFFICIENT CREDIBLE EVIDENCE PROVING W.M. GUILTY OF THE CRIMES CHARGED (PARTIALLY RAISED BELOW).

POINT III: THE COMPLAINTS DID NOT AFFORD THE JUVENILE ADEQUATE NOTICE TO DEFEND (PARTIALLY RAISED BELOW).

POINT IV: THE TRIAL COURT IMPROPERLY ALLOWED THE COACH TO TESTIFY AS A FRESH COMPLAINT WITNESS.

POINT V: CUMULATIVE ERROR WARRANTS REVERSAL OF THE TRIAL COURT'S FINDING OF GUILT.

POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION DURING DISPOSITION ENTITLING THE JUVENILE TO A NEW HEARING.

II

A.

We first address W.M.'s second point that the evidence was not sufficient to establish his guilt. We review a trial judge's decision in order to determine whether there is sufficient credible evidence in the record to support it. State ex rel. R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995) (citing State ex rel. J.R., 165 N.J. Super. 346, 350 (App. Div. 1979)). Our review is "narrow." State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (citations omitted), certif. denied, 180 N.J. 453 (2004). "Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks and citations omitted). A trial court's feel for the case "can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (internal quotation marks omitted)).

The trial court found the victims' testimony entirely credible despite minor discrepancies. This finding is supported by the record even though the victims' description of details may have been inconsistent, and was disputed on points such as the layout of the home years prior. We do not consider the issue to be worth further consideration in a written opinion. R. 2:113(e)(2).

We also consider W.M.'s cumulative error argument to be so lacking in merit as to not warrant any discussion in a written opinion, as we find no error occurred. R. 2:113(e)(2).

B.

W.M. contends the trial court erred by joining the four complaints for trial. Rule 5:20-1(e) provides that in delinquency matters, "[i]f two or more complaints are filed alleging separate acts constituting delinquency, hearing of the several complaints may be consolidated and a single disposition made of the combined causes." We review the joinder of offenses under an abuse of discretion standard. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996). We disturb such decisions only when prejudice may result to the defendant. State v. Sterling, 215 N.J. 65, 92 (2013). The test for the determination is found in N.J.R.E. 404(b): "[E]vidence of other crimes, wrongs, or acts is not admissible . . . [except] for other purposes, such as proof of motive, opportunity, intent, . . . [or] identity . . . when such matters are relevant to a material issue in dispute."

The balancing test regarding the admissibility of other crime evidence is found in State v. Cofield, 127 N.J. 328, 338 (1992). Evidence of other crimes is admissible only if: (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the offenses charged, (3) clear and convincing, and (4) has probative value not outweighed by its apparent prejudice. Ibid. The rule is one of exclusion rather than inclusion. State v. P.S., 202 N.J. 232, 255 (2010). Applying those factors, joinder was warranted here because the charges occurred, with one exception, in the same place, involved members of one family, and spanned a limited period of years as each sibling aged. The evidence of each sexual assault was relevant to the others.

As the trial judge noted, State v. Oliver, 133 N.J. 141 (1993), was persuasive on the issue. In that case, the trial court joined for trial charges of separate sexual attacks on two victims on different dates pursuant to Rule 3:152. Id. at 145. The State presented testimony from "three other women who claimed that defendant had sexually assaulted them under similar circumstances." Ibid. The Court agreed the evidence was admissible because the "feasibility of committing the assaults, defendant's use of pretext, and defendant's intent," were central to the trial of the matter. Id. at 151. Just because the specific issue of feasibility was not enumerated in the rule did not bar admission of the testimony. Id. at 149.

Just as in Oliver, in this case, feasibility was crucial. All three victims testified that the incidents occurred when there were adults and other children present in the house, with the exception of the incident with K.R. when she was waiting for the cable installer. Additionally, W.M.'s motive, an enumerated basis for admission, is also warranted as to the attempted assault.

Oliver remains authoritative on the subject of joinder of offenses. Although joinder is preferred, a trial judge has the discretion to grant or deny motions to either sever counts of an indictment or join indictments for trial purposes. In this case, the trial court's joinder of these matters was a more than reasonable exercise of discretion.

Each charge's evidence was material to the issue of whether W.M. could have committed any of the other offenses because of the location and the presence of other people in the home. The offenses were similar in nature and reasonably close in time, the proofs as to the three sets of charges were clear and convincing, and the probative value would not be outweighed by prejudice.

The trial court's conclusion that all four prongs of the Cofield test were satisfied and that the probative value of the proof of the other crimes outweighed the prejudicial effect is not error. The evidence was admissible and joinder thus proper.

C.

On appeal, W.M. also contends that the complaints failed to provide him with adequate notice of the dates on which the crimes were alleged to have occurred. In his motion to dismiss the complaint after the State rested, and in his closing argument, W.M.'s attorney argued that the lack of specificity with regard to the dates violated due process and required dismissal of the charges. This due process claim raises a question of law. Our review is therefore plenary. See State v. Handy, 206 N.J. 39, 45 (2011).

The victims only remembered their ages at the time the incidents occurred. As is ordinarily the case, because the victims were children, no specific dates could therefore be pinpointed. We are nonetheless satisfied that W.M. did indeed have adequate notice.

In State in the interest of K.A.W., 104 N.J. 112, 122-23 (1986), the Court stated

We do not insist on adherence to any particular formula. Rather, what is required is an especially diligent scrutiny of the facts of the incident . . . . The aim is to review the timeframe of the occurrence as complained of if not to the extent of an exact date or dates, then possibly in respect of seasons of the year, or incidents in the victim's life . . . . When the trial court is satisfied that these sources of information have been exhausted, it will then be in a position to strike the necessary balance to determine whether "fair notice" has been given.

We are satisfied that the K.A.W. guidelines have indeed been met. The victims, because of their age and the circumstances of the events, could not specify dates. The prosecutor's failure to investigate further details regarding the assaults was not fatal. The children knew either how old or in what grade they were. This sufficed. W.M. was thus adequately informed.

D.

W.M. also contends that the trial court erred by allowing J.D.'s coach to testify as a fresh complaint witness. He argues that the lapse in time between the assaults and J.D.'s disclosure negates any possibility that the statement could have been properly considered fresh complaint. We review the claim, as with every evidentiary decision made by the trial court, employing an abuse of discretion standard. State v. L.P., 352 N.J. Super. 369, 380-81 (App. Div.), certif. denied, 174 N.J. 546 (2002).

Although counsel objected to the admission of the evidence before it was elicited, the judge ruled that timeliness would be best addressed after the witness testified and that he would decide the issue as the case unfolded. Counsel never renewed the objection. Thus the State urges that we employ the plain error standard of review. R. 2:10-2. Whether under a plain or harmless error analysis, however, no error occurred.

Fresh complaint evidence is admitted to refute any inference that the incident never occurred that might be drawn from the victim's silence. State v. Hill, 121 N.J. 150, 163 (1990). The time-sensitive requirement of the rule "must be applied flexibly in light of the reluctance of children to report a sexual assault and their limited understanding of what was done to them." State v. W.B., 205 N.J. 588, 618 (2011) (internal quotation marks and citation omitted). In this case, there was a lapse of ten years between the event and the disclosure.

We note in passing that J.D. disclosed the event to his sisters when they saw marks on his torso after the sexual assault. That evidence, unobjected-to, is also admissible as fresh complaint.

J.D.'s explanation for the disclosure to the coach that W.M. touched his body a few days earlier, unleashing memories suppressed for years is an intervening circumstance that makes the delay reasonable. In other words, J.D. experienced the touching as yet another sexual assault, which triggered his disclosure of both recent and more remote events. The coach asked J.D. if anything was wrong, because he unexpectedly burst into tears. J.D. did not provide any details of the assault during the conversation and testified, himself, at trial. Thus we do not consider the admission of the statement to have been prejudicial, but rather proper under the fresh complaint theory which allows such testimony to refute any suggestion that the lapse in time negates credibility. State v. Bethune, 121 N.J. 137, 148-49 (1990).

E.

In calculating the proper sentence for W.M., the court reviewed the statutory aggravating and mitigating factors found in N.J.S.A. 2A:4A-44. W.M. requested that probation be imposed while maintaining his innocence, and the State sought incarceration.

The trial court found aggravating factors (a), the act was committed in a heinous, cruel, or depraved manner; (b), the juvenile knew the victim was vulnerable or incapable of resistance; (g), the need for deterrence; and (j), the impact of the offense on the victim. The court only found mitigating factors (a), the juvenile was under the age of fourteen, and (h), the juvenile had no prior history of delinquency. The judge found the nature and circumstances of the offenses to be "especially heinous, cruel, or depraved," and detailed the manner in which he considered the record to support circumstances beyond the statutory elements that made that aggravating factor applicable.3

The judge's sentencing analysis could have been clearer, as he did not fully explain the balancing of mitigating and aggravating factors leading to the brief time in custody imposed for three first-degree crimes occurring at different times and involving three separate victims. Despite the fact that W.M. has led a lawabiding and productive life since the commission of these offenses, the impact on the victims was substantial.

W.M. argues that the court found only mitigating factor (h), a conclusion which we do not consider to be a fair characterization of the record as we are convinced the judge found factor (a) as well. He also contends that since the Supreme Court has held that a fully rehabilitated juvenile may be placed on probation, despite having been convicted of a sexual assault, in State ex rel. J.S., 202 N.J. 465 (2010), a similar sentence of probation should have been imposed in this case. We do not agree. Sentencing W.M. to two years of incarceration was entirely within the trial court's authority under N.J.S.A. 2A:4A-43(b).

We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. R. 3:21-4(g); R. 5:1-1; State v. Bienieck, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Juvenile Justice Code, and the individual sentence does not shock our conscience, the result will be upheld. See ibid. In this case, the court's findings were supported by the record, the sentence complied with the Juvenile Justice Code, and the sentence does not shock our conscience.

Affirmed.

1 The trial court dismissed the first count of Complaint No. 1369 charging W.M. with second-degree sexual assault, N.J.S.A. 2C:14-2(b), at the close of the State's case.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Double-counting is relevant in a juvenile matter as well as an adult matter. In the appellate review of a juvenile sentence, we apply the same standards as would be the case in a criminal proceeding. State ex rel. K.O., 424 N.J. Super. 555, 564-65 (App. Div. 2012), rev d on other grounds, 217 N.J. 83 (2014).