STATE OF NEW JERSEY v. J.C.

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NOT FOR PUBLICATION WITHOUT THE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.

J.C.,

Defendant-Appellant.

_________________________________

August 24, 2016

Submitted April 5, 2016 Decided

Before Judges Leone and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-1052.

Law Office of Condon & Theurer, attorneys for appellant (Kathleen M. Theurer, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant J.C. appeals from his August 13, 2014 judgment of conviction for aggravated sexual contact and endangering the welfare of a child, L.A. (Lacey).1 He contends testimony from Lacey's friends was improperly admitted, and evidence of prior sexual abuse of Lacey was improperly excluded. We affirm.

I.

Lacey was born to E.T. (Mother) in 1996. Defendant was not related to Lacey, but was in a relationship with Mother, and later had other children with Mother. Defendant helped raise Lacey since she was three-months old, Lacey called him "father," and they had a father-daughter relationship.

Lacey testified that defendant sexually abused her in 2007, when she was ten or eleven years old, by touching her vagina, buttocks, and breasts. After she turned twelve in 2008, he sucked on her breasts, including during a "pinching game."

Lacey also testified that in January 2011, when she was fourteen, she went to defendant's hardware store to help him. While she sat on his lap, he began touching his penis. He turned on the television, which began showing graphic pornography of a man and woman having sex. Through her clothes, defendant touched Lacey's breast and vaginal area and pressed his penis against her buttocks. Defendant told her she was "f'ing sexy." Lacey left the store, too scared to tell Mother anything.

On January 25, 2011, Lacey told friends her father was touching her. A day or two later, one of her friends told a school counselor, who reported the abuse to authorities.

The police interviewed defendant. He initially denied touching Lacey inappropriately. He later said that they played a pinching game during which he pinched Lacey's breasts and nipples, and that he had put his mouth on her breast and tried to bite her nipple, but he said it was through her clothing. He added that they also played a game in which he smacked her buttocks, which he stopped because they were "taking it to a sexual point." Defendant said that Lacey "comes on to me . . . sexually." Regarding the incident in the store, defendant said Lacey sat on his lap, and that she had put on the pornography herself.

The indictment charged defendant with: Count One - second-degree sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(b); Count Two - third-degree aggravated criminal sexual conduct with a child at least thirteen and less than sixteen years old, N.J.S.A. 2C:14-3(a); Count Three second-degree endangering the welfare of a child through sexual conduct, N.J.S.A. 2C:24-4(a); and Count Four fourth-degree abuse, cruelty, and neglect of a child, N.J.S.A. 9:6-1, -3.

Count Four was dismissed before trial. The jury convicted defendant of Counts Two and Three, and acquitted him of Count One. The trial court denied defendant's motion for a new trial, and sentenced him to seven years in prison on Count Three, and four years in prison on Count Two, to run concurrently.

II.

Defendant appeals, raising the following arguments

POINT I THE INTRODUCTION OF TESTIMONY THAT VICTIM REPORTED BEING "RAPED" BY DEFENDANT, AS SUBSTANTIVE EVIDENCE, WITHOUT FRESH COMPLAINT LIMITING INSTRUCTIONS WAS REVERSIBLE ERROR.

POINT II EVIDENCE OF THE PRIOR ABUSE SHOULD HAVE BEEN ADMITTED AS IT WAS NECESSARY FOR THE JURY TO EVALUATE THE CREDIBILITY OF THE COMPLAINING WITNESS.

We must hew to "our deferential standard for reviewing a trial court's evidentiary rulings, which should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233 (2016) (citations and internal quotation marks omitted). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted."'" Ibid. (citation omitted).

III.

Defendant's first argument arises from testimony concerning Lacey's fresh complaint of the abuse on January 25, 2011. Defendant challenges only the testimony of Lacey's friends, but we first recount the other testimony about her fresh complaint.

Lacey testified that on the afternoon of January 25, she was leaving school with her friends M.F. (Mary) and A.A. (Amy). Lacey was going to go to Mother's work. Lacey called Mother, who told Lacey she had to go to defendant's work. Lacey said she really did not want to, because he would do "the thing" he had done before. Mother told her defendant would not because he would be with a coworker. Lacey responded, "okay. Fine."

Lacey testified she started crying. Her friends asked her what was wrong. Lacey related her conversation with Mother. Mother called Lacey back and asked what defendant had done before. Lacey replied that defendant was touching her sexually. Amy overheard Lacey's reply. Lacey told her friends that defendant "rapes" her. Lacey described the sexual touching as "rape" because she did not know what "rape" meant.

Lacey testified that the next day, Amy urged her to tell the school counselor what was happening. Lacey said she would tell soon. Amy went ahead and told the school counselor, who summoned Lacey, said Amy had told, and contacted the Division of Youth and Family Services (Division).

The school counselor testified that Amy and Mary came by because they were worried about Lacey. They told the counselor they had learned important information during the bus ride the day before. The counselor contacted a caseworker and a school district supervisor, who contacted the police.

Defendant does not question the admissibility of the testimony above. His challenge on appeal relates only to the trial testimony of Lacey's friends, Mary and Amy.

Mary testified that during the bus ride home on January 25, she invited Lacey to come study at her house. Lacey then called her Mother to ask for permission. Mother told Lacey no, that she had to go to work with defendant. Lacey started tearing up, and Mary asked why. Lacey said she did not want to go with defendant because he "raped" her. Mary asked Lacey what she meant, and Lacey said he touched her. After getting off the bus, Mary walked to defendant's house and asked him if Lacey could come over, but defendant said Lacy had to go to work with him that day.

Amy testified that on the January 25 bus ride, Lacey was planning to go to work with her Mother after school. Lacey got a phone call from her Mother. When Lacey hung up, she was very angry and crying. When her friends asked what was wrong, Lacey said they did not know what defendant did to her. When asked, Lacey said "he rapes me." They told Lacey she should tell her Mother. The next day, they asked Lacey if she had done so, and Lacey said she did but her Mother slapped her and said she was lying. After Lacey refused to tell the school counselor, Amy told the counselor.

Before allowing Mary and Amy to testify before the jury, the trial court heard them testify in a hearing under N.J.R.E. 104. The court considered the fresh-complaint doctrine, which "allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015) (citing State v. Hill, 121 N.J. 150, 163 (1990)). "[T]he trial court is required to charge the jury that fresh-complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made." Id. at 456.

"In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support." Id. at 455. Here, the trial court found that all of those criteria were satisfied, and that the testimony of Amy and Mary would be admissible under the fresh-complaint doctrine. The court stated it would give the model fresh-complaint instruction to the jury.

The prosecutor noted the trial court's findings were under "Fresh Complaint theory [two]," and argued the testimony was substantively admissible under "Fresh Complaint theory one." That was a reference to Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(2) (2013). That commentary categorized the fresh-complaint doctrine under Hill and similar common-law cases as "Fresh Complaint Theory 2," and categorized "a statement made by the victim following such an offense which qualifies as an 'excited utterance'" under N.J.R.E. 803(c)(2) as "Fresh Complaint Theory 1."2

Defense counsel agreed the friends' testimony was admissible under the fresh-complaint doctrine, but was uncertain whether it was admissible under the excited-utterance rule. After a discussion with the trial court, defense counsel said he was "pretty close to agreeing" that the testimony was admissible under the excited-utterance rule, but "before I do agree," he wanted to consider the instruction that would be given. The court handed defense counsel the model instruction that would be used if the testimony was admitted in under the fresh-complaint doctrine.3 However, the court made clear that no instruction would be given if the evidence was admitted under the excited-utterance rule. Defense counsel recapped that "we are agreeing" the testimony was "an excited utterance" and "there'll be no specific charge with regard to that?" The court answered: "Correct." Defense counsel replied: "I think that's okay. I mean, it won't be highlighted so it's all right." The court responded: "Okay. Thank you."

On appeal, defendant argues that the friends' testimony was properly admissible under the fresh-complaint doctrine, but not under the excited-utterance rule, and that the trial court erred by not giving the fresh-complaint limiting instruction. Even assuming those arguments are correct, defendant's claim of error is barred by the invited-error doctrine.

"Under the invited error doctrine, 'trial errors that "were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). "The doctrine acknowledges the common-sense notion that a '"disappointed litigant"' cannot argue on appeal that [such] a prior ruling was erroneous[.]" A.R., supra, 213 N.J. at 561 (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)). "Our courts have applied the doctrine of invited error in a wide variety of situations," M.C. III, supra, 201 N.J. at 340, including jury instructions, State v. Ramseur, 106 N.J. 123, 281-82 (1987).

Here, defense counsel agreed that the friends' testimony was admissible. Moreover, he stated he was "pretty close to agreeing" that the testimony fell under the excited-utterance rule while the trial court was weighing the issue, and "agreed" with that result thereafter. Finally, defense counsel also acquiesced and consented to the omission of a limiting instruction, saying it was "okay" and "all right." See A.R., supra, 213 N.J. at 563 (defense counsel's statement that the jury "might be able to look at" evidence it had requested "[a]t the very least . . . consented or acquiesced to the request"). There was "[s]ome measure of reliance by the court" on defendant's position. State v. Jenkins, 178 N.J. 347, 359 (2004); cf. id. at 360 (the judge reached the requested result only by disagreeing with defense counsel's position that the facts supported an instruction).

Moreover, defense counsel also offered a tactical reason for acquiescing and consenting to the absence of an instruction, namely that the testimony would not be "highlighted" if the court did not reference it in an instruction. A defendant "cannot now argue that the court should have given a . . . curative instruction, when it was defense counsel who insisted that the court not 'highlight' the [issue] with a[n] instruction to the jury." State v. Loftin, 146 N.J. 295, 365 (1996). The invited-error doctrine "will apply 'when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100 (2014) (quoting A.R., supra, 213 N.J. at 561-62), cert. denied, __ U.S. __, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).

"Even if a party has 'invited' an error, though, courts will not bar defendants from raising an issue on appeal if 'the particular error . . . cut mortally into the substantive rights of the defendant,'" and "would '"cause a fundamental miscarriage of justice."'" A.R., supra, 213 N.J. at 562 (citations omitted). Defendant cannot make that showing.

First, as defendant concedes, the friends' testimony was admissible under the fresh-complaint doctrine. See State v. W.B., 205 N.J. 588, 616-19 (2011). Lacey's statements to them were "made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support." R.K., supra, 220 N.J. at 455. Thus, the jury was going to hear the friends' testimony in any event.

Second, the friends' testimony did not add any facts that were not testified to by Lacey and the school counselor. State v. Queen, 221 N.J. Super. 601, 608 (App. Div.), certif. denied, 110 N.J. 506 (1988); cf. R.K., supra, 220 N.J. at 459-60 (the fresh-complaint testimony improperly included sexual acts and "threats made to the victim that were not elicited from the victim herself").

Third, the direct testimony of Amy and Mary was brief, merely restated Lacey's fresh complaint, and lacked details about the touching. See W.B., supra, 205 N.J. at 617; cf. R.K., supra, 220 N.J. at 459 (finding fresh-complaint testimony improper because it was "excessive," "did more than convey the nature of C.G.'s complaint, [and] was excessively graphic").

Defendant focuses on the friends' testimony that Lacey said defendant "rapes" her. That merely echoed Lacey's own testimony about what she said to them. More importantly, as Lacey herself explained to the jury, Lacey did not know that the word "rape" meant penetration, and she mistakenly used it to refer to inappropriate touching. Mary's testimony similarly clarified that Lacey said she only meant defendant touched her. The prosecutor made clear in summation that Lacey "thought rape meant any kind of touching that someone didn't like." Defense counsel made the same point in his summation.

Fourth, "other medical and psychological testimony supported the victim's assertions," including the testimony by a clinical psychologist on Child Sexual Abuse Accommodation Syndrome (CSAAS). See State v. Bethune, 121 N.J. 137, 145 (1990). Indeed, the principal corroboration for Lacey's testimony came from defendant himself. In his statement, defendant admitted to touching Lacey's breast, nipples, and buttocks as a game, and attempting to bite her nipple. In his trial testimony, defendant again admitted that he tried to pinch her nipple with his mouth, and that at the store Lacey watched pornography and sat on his lap. Thus, "the fresh-complaint evidence in this case was not the accusor's sole corroboration." Ibid.

Fifth, the prosecutor's summation barely mentioned the friends' testimony, and never argued the friends' testimony showed Lacey was credible. Cf. State v. Buscham, 360 N.J. Super. 346, 359-60 (App. Div. 2003) (the prosecutor's argument asked the jury to do "precisely what the jury should have been told it could not do" with fresh-complaint testimony). Rather, it was defense counsel who stressed the friends' testimony, arguing it showed that Lacey was not credible because of the discrepancies between their testimony and Lacey's testimony. The prosecutor responded that their testimony did not differ on whether Lacey complained "he rapes me," and that Lacey "told her friends about what happened and [Amy] told" the school because Amy was worried about Lacey. The prosecutor's brief mentions of the friends' testimony were consistent with the limited role of fresh-complaint evidence.4

Finally, there was no "indication that jurors considered the fresh-complaint testimony for an improper purpose." R.K., supra, 220 N.J. at 456; cf. State v. Williams, 377 N.J. Super. 130, 153 (App. Div.) (the improperly-instructed jury requested read-back of the fresh-complaint testimony), certif. denied, 185 N.J. 297 (2005).

Thus, the friends' testimony "was not of singular weight or importance at trial." Bethune, supra, 121 N.J. at 145. Therefore, defendant cannot show the "fundamental miscarriage of justice" required to avoid application of the invited-error doctrine. See A.R., supra, 213 N.J. at 563 (finding no fundamental miscarriage of justice where the jury was improperly given unfettered access to video evidence); M.C. III, supra, 201 N.J. at 342 (finding no fundamental miscarriage of justice where the jury was allowed to consider hearsay evidence).

Even if the invited-error doctrine did not apply, defendant would have to show plain error because he never objected to the absence of the fresh-complaint instruction. For all the reasons above, he cannot show it was "clearly capable of producing an unjust result." R. 2:10-2; see, e.g., Bethune, supra, 121 N.J. at 149 (finding erroneous fresh-complaint instruction was not plain error and "was harmless"); State v. Tirone, 64 N.J. 222, 227 (1974) (finding failure to give a fresh-complaint instruction "was harmless and did not mandate a reversal").

IV.

Defendant next claims he should have been allowed to introduce evidence that Lacey had been sexually assaulted by one of her brothers. When she was about ten years old, the brother had touched her private parts and tried to put his penis inside. Mother found the brother attempting to open Lacey's pants, stopped him, and reported the assault, which resulted in the brother being removed from the home by the Division.

Just before defendant took the stand, defense counsel asked the trial court to allow him to question defendant about the brother's assault. Citing the Rape Shield Law, N.J.S.A. 2C:14-7, the trial court found that the brother's assault was irrelevant and that defense counsel had neither need nor basis to question defendant about it.

The Rape Shield Law limits the admissibility of evidence of a victim's previous sexual conduct. Ibid. "Under [the] case law interpreting the Rape Shield Law, determining the admissibility of evidence of a victim's prior sexual conduct requires a two-step analysis." State v. Perry, 225 N.J. 222, 236 (2016). "The first step requires the trial court to ascertain whether evidence encompassed under the Rape Shield Law is relevant and necessary to resolve a material issue in light of the other evidence that is available to address that issue." Id. at 236-37. "If found to be relevant, the court must then, as the second step, decide whether, under N.J.R.E. 403, the probative value of the contested evidence outweighs the prejudicial effect to the victim in the context of the Rape Shield Law." Id. at 237. The "'trial court must weigh the relevance of the proffered evidence, its necessity to the defense, and its apparent veracity against its potential to humiliate the victim, invade her privacy, and confuse the jury[.]'" Ibid. (citation omitted).

When first raising this issue, defense counsel argued that the brother's assault was admissible to show an alternate source for Lacey's sexual knowledge under State v. Budis, 125 N.J. 519 (1991). In Budis, while playing a computer boxing game, the nine-year-old victim "commented that one boxer looked like he was 'sucking the other guy off.'" Id. at 525. Confronted, she revealed she had been sexually abused by her stepfather and then had oral and vaginal sex with the defendant. Id. at 525-26. Defendant claimed the child had initiated oral sex on him. Id. at 525-26. The Supreme Court held evidence of the stepfather's earlier sexual abuse of the victim had to be admitted, because otherwise "a jury would [not] expect a child of such tender years to know the intricacies of oral and vaginal sex," and "the jury would naturally be disinclined to believe that a nine-year-old child would know enough about sexual acts to initiate the alleged encounters." Id. at 536-37. The Court explained that admissibility of such evidence to show sexual knowledge depended on "whether the prior abuse closely resembles the acts in question," and "the age of the child," noting that "evidence of prior sexual experience is less probative in cases involving older children." Id. at 533-34.

Lacey was fourteen years old at the time she accused defendant, an age by which many children "likely will learn about sexuality from many sources." Ibid.; see State v. Schnabel, 196 N.J. 116, 131 (2008) (distinguishing Budis because the victim was fourteen years old). Indeed, the evidence showed that Lacey sent her boyfriend a nude video of herself and inappropriate texts in January 2011.5 Moreover, Lacey's accusations against defendant did not claim an intricate knowledge of sex, but only that he touched her private parts. See State v. Velasquez, 391 N.J. Super. 291, 321 (App. Div. 2007). The brother's attempted penetration did not closely resemble defendant's touching. Finally, defendant did not raise the defense of child-initiated sex, to which "evidence of an alternative source of [the child's] sexual knowledge is crucial." Budis, supra, 125 N.J. at 537.

After both sides had rested, defense counsel asked the trial court to allow defendant to testify about the brother's assault under Schnabel, supra. There, the Supreme Court allowed the defense to admit evidence of assaults by the victims' brother where the victims concealed his assaults during several interviews by the police, then gave differing accounts, creating "credibility issues." 196 N.J. at 132. In addition, the victims had concealed the defendant's abuse until three years after it ended, making the State's CSAAS testimony critical. Id. at 123-25. The Court found that, "[w]ithout knowing that the victims had previously been abused by their brother, the jury was asked to evaluate the CSAAS testimony . . . on an incomplete record." Id. at 132.

Here, the brother's assault on Lacey was quickly discovered by Mother, and Lacey promptly disclosed her brother's abuse in her initial police interview in January 2011, so it did not raise any issues of credibility or delayed reporting. Thus, this case is unlike Schnabel, where it was argued the victims "not only delayed their disclosure of the purported abuse by defendant but also delayed disclosure of the abuse by their brother," making it "unfair to deprive [defendant] of the opportunity to submit evidence that the girls' behavior that conformed to [CSAAS] may have had its genesis in their brother's abuse." Id. at 124, 127. Moreover, in Schnabel, the Court stressed the "powerful" CSAAS testimony "provided a 'ring of truth' to the testimony of the sisters." Id. at 124, 132. By contrast, here the jury acquitted defendant of the sexual assault alleged to have occurred before Lacey turned thirteen years old, apparently unswayed by the CSAAS testimony admitted to explain delay in reporting abuse. See id. at 133. The jury instead convicted defendant on counts encompassing the January 2011 abuse, which Lacey disclosed within days.

Thus, defendant's case lacks the facts determinative in Schnabel. As the trial court held, Schnabel did not create a per se rule requiring the admission of evidence of the victim's prior sexual conduct whenever the State offers CSAAS testimony. Rather, "[t]he determination of whether evidence of a victim's prior sexual conduct is admissible 'is exquisitely fact-sensitive' and 'depends on the facts of each case.'" Perry, supra, 225 N.J. at 238 (citation omitted); see Schnabel, supra, 196 N.J. at 130 (courts "must balance competing factors").

On appeal, defendant advances another theory for admitting evidence of the prior sexual assault: Lacey previously made an allegation of sexual assault that resulted in her brother's removal from the home, and she used that experience to accuse defendant of sexual conduct and get him removed from the home.

However, defendant failed to articulate this theory to the trial court.6 A party must articulate the "specific reasons" why evidence should be admitted or excluded. State v. Nelson, 318 N.J. Super. 242, 250 (App. Div.), certif. denied, 158 N.J. 687 (1999); R. 1:7-2. Thus, defendant must show plain error. State v. Nunez, 436 N.J. Super. 70, 76 (App. Div. 2014).

Defendant cannot show plain error regarding his new theory. First, his premise is flawed: there was no evidence the ten-year-old Lacey orchestrated the brother's removal by making an allegation; rather, the evidence was that Mother caught him assaulting Lacey and Mother's report triggered his removal. Second, to make that argument, it would have been self-evident to a fourteen year old that accusing defendant of sexual abuse could result in his arrest and removal from the home. Therefore, "[i]t was not necessary" for the defense to elicit Lacey's "experience" with being sexually assaulted. See State v. J.D., 211 N.J. 344, 361 (2012). Third, any probative value the evidence had was outweighed by its potential to humiliate Lacey and invade her privacy. Finally, defendant cannot show that the exclusion of that evidence was "clearly capable of producing an unjust result." R. 2:10-2.

Affirmed.

1 We use initials and pseudonyms to protect the identities of Lacey and her juvenile friends.

2 An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). To avoid confusion, we will refer to evidence admissible under that excited-utterance rule as an "excited utterance," and reserve the term "fresh complaint" for evidence admissible under the fresh-complaint doctrine created by Hill and other cases.

3 See Model Jury Charge (Criminal), "Fresh Complaint" (2007).

4 The prosecutor's opening similarly described Lacey's telling her friends "what the defendant had been doing to her" as a fresh complaint which alerted the school and the authorities.

5 Defense counsel argued to the jury that Lacey was angry at defendant because he punished her for sending the video and texts.

6 Defense counsel specifically told the court he was not arguing the evidence should be admitted to show motive to fabricate.