STATE OF NEW JERSEY v. I.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NOT FOR PUBLICATION WITHOUT THE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.

I.P.,

Defendant-Appellant.

_______________________________________________________

July 13, 2015

Submitted June 2, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-06-00961.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Megan Cowles, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant, I.P., of one count of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and two counts of child endangerment against his daughter, Cathy.1 Defendant appeals from the October 23, 2012 judgment of conviction and fourteen-year prison sentence. Defendant claims the trial judge erred in deciding to admit two of Cathy's out-of-court statements, which reported sexual abuse by defendant. Defendant further claims that his sentence was excessive. After reviewing the record in light of the applicable law, we affirm both the conviction and the sentence.

The record reveals the following facts. On June 25, 2010, a grand jury charged defendant with one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. These charges stemmed from two separate incidents concerning the same victim, Cathy.

According to Victoria, Cathy's mother, on April 16, 2010, after a day of shopping, the family returned home. That night, Cathy and her two younger brothers did not sleep in their bedroom, which defendant was painting. Instead, they slept on the floor of their parent's bedroom while their parents slept in the living room.

At some point during the night, Cathy asked for help finding her stuffed rabbit. Defendant went into the room where Cathy was sleeping to help her find it. After Cathy found the rabbit, defendant went back to the living room to sleep on the sofa. At some point later in the night, Victoria saw defendant return to the room where the children were sleeping. While he was in the room, Victoria heard his keys drop to the floor, and she went into the room to investigate.

When Victoria entered the room, she saw defendant bent down over Cathy's vaginal area. She asked what he was doing to Cathy, but he said that he did not do anything. At the time, Victoria noticed that he was only wearing his underwear, and when she moved the sheet from over Cathy, she discovered that Cathy was not wearing underwear.

After this discovery, Victoria asked Cathy what happened. Cathy responded that defendant had licked her private parts. Victoria continued to question Cathy, and Cathy said that this was the fifth time that defendant had done this. When Cathy made this statement, defendant left the house.

Although the incident took place on a Friday, Victoria waited until Monday to report it. Rather than call the police, which she said she chose not to do because of an open warrant for her arrest, she called the Division of Youth and Family Services.2

Melissa Mosquera, an intake worker with the Division, received the initial phone call. In compliance with Division protocol involving sexual abuse allegations, Mosquera alerted the prosecutor's office, and then went to the home with the assigned intake worker, Ryan Romer. When they arrived, Cathy was not home, but Victoria described the incident that had taken place on Friday.

After listening to Victoria, the Division workers went to Cathy's school to speak with her. Cathy spoke to Mosquera about the family's shopping trip over the weekend. When pressed, Cathy denied any issues or problems in the family and continued her denial after Mosquera asked if "anyone had made her feel uncomfortable," or "touched her in a bad way." At that time, Mosquera had no reason to believe that Cathy was not being honest. The Division workers also spoke with Cathy's brother, who also did not report any abuse. The workers went back to defendant's home, to "pretty much confront [Victoria's] allegations."

When the Division workers arrived at the home, Cathy and the other two children had returned home from school. Victoria told the Division workers to talk to the children again, claiming that the children told her that they had lied to the Division workers at school.

Mosquera interviewed Cathy in her bedroom while Victoria and Romer were in another room in the home. Cathy grabbed her purple rabbit, started crying, and said that her dad had done "nasty things" to her. Mosquera asked Cathy if her mother had told her what to say. Cathy said, "yes, to tell the truth." Although Mosquera could not remember the exact words, she recalled Cathy said that her father had touched her breasts and licked her vagina. At the end of the interview, Cathy revealed that earlier in the day she had seen defendant, who gave her five dollars, asked for her forgiveness, and told her that he loved her. Cathy explained she initially lied because she did not want her father to go to jail. After Cathy's disclosure of abuse, Mosquera stopped questioning Cathy and took her and Victoria to the prosecutor's office.

At the prosecutor's office, Cathy gave a statement to Detective Jeffrey Maroccia, which was recorded on video. With only the two of them in the interview room, Maroccia began by drawing male and female members of the family on the board, and asking Cathy what terminology she used to refer to various body parts. Maroccia then discussed the difference between good and bad touching and asked if anyone engaged in touching that Cathy did not like.

Cathy described two incidents of abuse, one that took place at her aunt's house, and the incident that took place the previous weekend. Regarding the incident at her aunt's house, Cathy used child-like language to say that her father placed his penis in her vaginal area. As to the previous weekend, she said that he licked her vagina, again using child-like language. She then said that earlier that day, she saw her father while she was walking home and that he apologized to her. After stating verbally what had happened, she demonstrated what had happened using anatomically correct dolls.

After the interview, Victoria agreed to phone defendant and allow the prosecutor's office to record the call. During the conversation, defendant vigorously denied doing anything to his daughter, but also made comments suggesting that the devil made him engage in inappropriate behavior.

Prior to trial, the State notified defendant that it wanted to introduce the video-recorded interview with Maroccia, and Cathy's out-of-court statements to Mosquera and Victoria. The court held a Rule 104 hearing to determine whether to admit the out-of-court statements. After hearing the testimony, the court decided to admit the statements, finding that each was sufficiently reliable and trustworthy.

In finding Cathy's statement to Victoria trustworthy, the judge stressed that it was consistent with the recorded interview as well as Cathy's statement to Mosquera, when Victoria was not present. In considering and rejecting defendant's argument that Victoria was not a credible witness because she was inconsistent and had a motive to lie, the judge ruled that any discrepancies or inconsistencies in Victoria's testimony did not discredit her testimony concerning Cathy's testimony, especially in light of the consistency with the other statements.

In finding Cathy's statements to Mosquera trustworthy and reliable, the judge noted that there was no indication of coercion or undue suggestiveness. The judge further found that the fact that Cathy originally denied any abuse was understandable, especially because of Cathy's meeting with defendant earlier where he asked for her forgiveness. In considering the trustworthiness of the statements to her mother and the caseworker, the judge noted she had viewed Cathy's consistent statement to Maroccia. The judge found that statement trustworthy as it involved the use of age-appropriate language, Cathy accurately demonstrated oral sex on the dolls, which exhibited knowledge well beyond her age, and her emotional expressions during the interview enhanced her credibility.

At trial, the caseworker, Victoria, and Cathy testified. The Division also introduced into evidence the videotaped interview and the transcript of Victoria's phone conversation with defendant. In addition, defendant testified. The defense also called caseworker Romer to testify that after interviewing Cathy at the school, the Division did not substantiate abuse. The defense also called a police officer who had responded to a domestic violence incident where Victoria was identified as the abuser and forcibly removed from the home. On April 5, 2012, the jury convicted defendant on all five counts.

On October 23, 2012, the court sentenced defendant to fourteen years imprisonment on count one, the aggravated sexual assault charge, subject to a period of eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and merged counts two and three with count one. The judge also sentenced defendant to seven years on count four, the sexual assault charge, subject to NERA, to run concurrent to the first sentence, and merged count five with count four. By virtue of these convictions, defendant was also subject to parole supervision for life, and was required to register and report under Megan's law.

On appeal, defendant raises the following contentions for our consideration

POINT I - THE JUDGE ERRED IN DETERMINING THAT THE HEARSAY ACCOUNTS OF [CATHY'S] STATEMENTS MADE TO HER MOTHER AND TO THE [DIVISION] WORKER WERE ADMISSIBLE UNDER N.J.R.E. 803(c)(27).

POINT II - DEFENDANT'S SENTENCE OF FOURTEEN YEARS WITH 85% PAROLE BAR IS MANIFESTLY EXCESSIVE UNDER THESE CIRCUMSTANCES.

We first consider defendant's argument that the trial judge erred in admitting Cathy's out-of-court statements reporting abuse to her mother and the caseworker. Defendant contends that the statements were insufficiently trustworthy to be admitted into evidence, essentially because Victoria was not a credible witness and Cathy originally denied any abuse to Mosquera. We do not agree.

N.J.R.E. 803(c)(27), known as the tender years exception to the hearsay rule, governs the admission of out-of-court statements about sexual misconduct by a child less than twelve years old. N.J.R.E. 803(c)(27) provides in pertinent part

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding 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 the time, content, and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . (i) the child testifies at the proceeding . . . .

The tender years exception was adopted in recognition of the importance of the testimony of a child who is a victim of sexual misconduct, the potential reliability and credibility of the victim's spontaneous out-of-court statements, and the impact of the lapse of time and the stress of the courtroom setting on the child's ability to testify. State v. D.R., 109 N.J. 348, 358-60, 370-71 (1988). While Cathy was twelve years old at the time of trial, age is measured at the time the statement is made. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). Defendant had prior notice of the State's intention to introduce the statements, a pre-trial hearing occurred, and Cathy testified at the trial. Thus, the only condition for admission of the statements in dispute is whether there was a probability that Cathy's statements to Victoria and Mosquera were trustworthy.

The question of whether an out-of-court statement is trustworthy requires consideration of the totality of circumstances and an assessment of the sufficient reliability "based on the 'time, content and circumstances of the statement'" State v. P.S., 202 N.J. 232, 249 (2010) (quoting State v. D.G., 157 N.J. 112, 128 (1999)). In Idaho v. Wright, the United States Supreme Court provided a list of factors to be considered by a trial judge in making such a determination. 497 U.S. 805, 821-22, 827, 110 S. Ct. 3139, 3150, 3153, 111 L. Ed. 2d 638, 656, 659-60 (1990). The non-exhaustive list includes "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of a similar age, [the] interrogation and manipulation by adults." Ibid. The court can also consider the child's relationship to the interviewer and the interviewer's ability to recall. Ibid.

Although the list is non-exhaustive, all factors considered must relate to "whether the child declarant was particularly likely to be telling the truth when the statement was made." Ibid. Recently, our Supreme Court has recognized that the Wright factors are still appropriate for guidance when doing a trustworthiness analysis under N.J.R.E. 803(c)(27). P.S., supra, 202 N.J. at 249-50 (quoting State v. Burr, 392 N.J. Super. 538, 570 (App. Div. 2007), modified on other grounds, 195 N.J. 119 (2008)).

Decisions on whether the hearsay statements have sufficient guarantees of trustworthiness are reviewed to determine whether the trial court abused its discretion, and should not be disturbed unless the decision is "'clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" Id. at 250-51 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)) (alteration in original). We find no abuse of discretion in the trial court's decision to admit the statements. The judge had the opportunity to observe and assess the witnesses. The judge applied appropriate reliability factors under the totality of the circumstances test and concluded that the statements had sufficient indicia of trustworthiness to be reliable. The judge highlighted that the statement possessed the specific factors of reliability including consistency over time, age appropriate language accurately describing age inappropriate conduct, the lack of any solicitation or prompting, and the fact that Cathy exhibited emotion after making the statement. See Burr, supra, 392 N.J. Super. at 570.

We reject defendant's argument that the trial judge erred, because Victoria was not credible, and a credibility assessment of the testifying witness should be included in the judge's evaluation of the "totality of the circumstances." When considering a hearsay statement under N.J.R.E. 803(c)(27), the judge is only supposed to analyze the inherent trustworthiness of the statement. See id. at 569. In reaching her admissibility decision, the judge did consider defendant's argument that Victoria's testimony was unreliable and found that the inconsistencies did not taint her testimony about Cathy's statements, particularly in light of their consistency with the statement to the caseworker and the detective. We also reject defendant's argument that the statement Cathy made to Mosquera was untrustworthy because she had recently denied any abuse. It was not unreasonable for the judge to accept Cathy's explanation that her father had apologized and she did not want him to go to jail.

Furthermore, even if admission of the statement was error, it was harmless beyond a reasonable doubt. See State v. J.G., 261 N.J. Super. 409, 421 (App. Div.), certif. denied, 133 N.J. 436 (1993); see also Wright, supra, 497 U.S. at 823, 110 S. Ct. at 3150-51, 111 L. Ed. 2d at 657 ("[W]e think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless. . . ."). Defendant does not challenge on appeal the admission of the videotaped interview with Maroccia, which fully corroborated the other statements. In the present case, the jury had the full opportunity to judge Victoria's credibility, as well consider Cathy's initial denial to Mosquera as undermining her credibility. In sum, we find that the judge had sufficient support in the record to find the statements trustworthy and properly permitted testimony about Cathy's out-of-court statements pursuant to N.J.R.E. 803(c)(27..

Next, defendant argues that his fourteen-year sentence was excessive. Primarily he argues that it was improper to consider deterrence as an aggravating factor because nothing in the record provided a basis for a need for specific deterrence.

We review a trial court's sentencing decisions under an abuse of discretion standard. See State v. Kirk, 145 N.J. 159, 175 (1996) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). The appellate court affords deference in reviewing sentencing determinations and "must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be affirmed unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (alteration in the original).]

When determining an appropriate sentence, the court must "undertake[] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." Roth, supra, 95 N.J. at 359. The judge found that aggravating factors three, risk of committing another offense, and nine, need to deter both defendant and others, applied. N.J.S.A. 2C:44-1(a)(3), (9). He also found that mitigating factor seven, no prior criminal history, applied. N.J.S.A. 2C:44-1(b)(7). The judge declined to find mitigating factor eight, result of circumstances unlikely to recur, as defendant continued to deny the crime and had not received treatment. We are satisfied that the trial court did not abuse its discretion in finding either the aggravating factors or mitigating factors.

The judge's finding of a need for deterrence had substantial support in the record. Defendant continued to deny responsibility for his actions, and the evaluator from the Adult Diagnostic and Treatment Center found that his offenses were repetitive. Continued denials in court after conviction support a need for specific deterrence. State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). The imposed sentence was below the middle of the range for a first-degree sentence and does not shock our conscience.

Affirmed.

1 We use initials for defendant and pseudonyms for family members to protect the family's privacy.

2 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.