STATE OF NEW JERSEY v. R.K.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3540-14T4

STATE OF NEW JERSEY

Plaintiff-Respondent,

R.K.,

Defendant-Appellant.

_______________________________

Argued October 3, 2017 – Decided December 1, 2017

Before Judges Sumners and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 13-
08-0451.

Solmaz F. Firoz, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Firoz, of counsel and on the brief.

Claudia Joy Demitro, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Demitro, of counsel and on the brief).

PER CURIAM
R.K. was indicted for acts committed against his daughter,

K.K., when she was less than thirteen years old: first-degree

aggravated sexual assault,
N.J.S.A. 2C:14-2(a) (Counts One and

Two);1 second-degree sexual assault,
N.J.S.A. 2C:14-2(b) (Count

Three); and second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a) (Count Four).2 A jury found defendant guilty

on all counts.

Defendant was sentenced to concurrent seventeen-year terms

in state prison on Counts One and Two, both subject to the No

Early Release Act,
N.J.S.A. 2C:43-7.2; an eight-year term on Count

Three, concurrent to Counts One and Two; and a five-year term on

Count Four, consecutive to Counts One, Two and Three.3

On appeal, defendant argues:

POINT I

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN
S.K.'S TESTIMONY EXCEEDED THE BOUNDS OF FRESH
COMPLAINT AND A PROPERLY TAILORED CURATIVE
INSTRUCTION WAS NOT ISSUED TO THE JURY.

1
The first count of the indictment alleged anal penetration; the
second count alleged defendant had his daughter perform fellatio
upon him.
2
The sexual conduct alleged to constitute endangering was "oral
[-]to[-]genital penetration and genital[-]to[-]anal penetration."
3
Defendant was also sentenced to comply with Megan's Law,
N.J.S.A.
2C:7-1 to -11, and Parole Supervision for Life,
N.J.S.A. 2C:43-
6.4, on Counts One, Two and Three.

2 A-3540-14T4
POINT II

DURING HER CLOSING STATEMENT, THE PROSECUTOR
MISLED THE JURY AS TO RESULTS FROM THE
FORENSIC TESTING CONDUCTED ON THE BEDROOM
CARPET, A CRUCIAL PIECE OF EVIDENCE THAT WENT
DIRECTLY TO DEFENDANT'S GUILT. THIS
PROSECUTORIAL MISCONDUCT, PAIRED WITH THE LACK
OF A PROPER CURATIVE INSTRUCTION FROM THE
COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE AS THE
COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING
FACTORS AND ERRONEOUSLY IMPOSED CONSECUTIVE
SENTENCES.

We disagree with defendant's contentions with regard to Points I

and II and affirm, but remand for resentencing for the reasons we

express below in detail.

S.K., K.K.'s mother, testified at trial as a fresh-complaint

witness that on June 16, 2013, K.K. handed her a note4 and told

her, "Daddy raped me." Although S.K. could not recall the exact

words used by her daughter when she asked K.K. if she knew what

"rape" meant, S.K. testified, "[W]hat she did say was that her

father made her suck his penis." S.K. then told the jury that

K.K. informed her when the act occurred – "[a]bout a week, a couple

4
The note read, "Mommy, I can't tell you this, so I write it to
you. Daddy used to and rarely now, rape me. I got up my courage
to do this."

3 A-3540-14T4
weeks ago" – where it occurred, where K.K.'s brothers and S.K.

were at the time, and what defendant told the brothers prior to

the act. S.K. also testified that she asked K.K., "Has this

happened before?" S.K. followed with:

And, she said, "Yes." And, she said, "But
only on the weekends when I wasn't there."
And, that I asked her questions like, "Well,
what happened? Or, where?" She said it
happened in, you know, my bedroom, that he
licked her down there. In her vagina, and he
had used - - touched her there with his
fingers. That he had also touched her anus
with his fingers.

"The fresh-complaint rule allows witnesses in a criminal

trial to testify to a victim's complaint of sexual assault." State

v. Hill,
121 N.J. 150, 151 (1990). The limited purpose of fresh-

complaint testimony is to rebut the inference that the victim's

initial silence was inconsistent with later claims of abuse. Id.

at 151-52.

Defendant does not contend the fresh-complaint testimony

offered was inadmissible, but that S.K. exceeded the bounds of

proper fresh-complaint testimony and offered "unnecessary details

of the substance of K.K.'s complaint." Defendant also avers the

trial judge "failed to issue a sufficiently tailored jury

instruction to cure the prejudice caused" by the admission of

S.K.'s testimony. No objection was raised to the testimony or to

the model jury charge on fresh-complaint delivered by the judge

4 A-3540-14T4
at the conclusion of S.K.'s testimony and, again, at the end of

the case.

The Supreme Court addressed the issues raised here, and our

standard of review, in State v. R.K.,
220 N.J. 444, 456 (2015):

Only the facts that are minimally
necessary to identify the subject matter of
the complaint should be admitted; the fresh-
complaint testimony is not to be used "to
corroborate the victim's allegations
concerning the crime." [State v. Bethune, 121
N.J. 137,] [i]d. at 146,
578 A.2d 364
[(1990)]; see also [State v.] W.B., supra, 205
N.J. [588,] at 617,
17 A.3d 187 [(2011)] ("A
witness may testify only to the general nature
of the complaint, and unnecessary details of
what happened should not be repeated.").
Therefore, the 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. Bethune,
supra,
121 N.J. at 147-48,
578 A.2d 364; State
v. P.H.,
178 N.J. 378, 393,
840 A.2d 808 (2004)
(asserting that Bethune "required" courts to
give limiting instruction).

When a defendant fails to object to an
erroneous or omitted limiting instruction, it
is viewed under the plain-error rule, Rule
2:10-2. Thus, the error will be disregarded
unless a reasonable doubt has been raised
whether the jury came to a result that it
otherwise might not have reached. State v.
Daniels,
182 N.J. 80, 95,
861 A.2d 808 (2004).
Plain error is more likely to be found if there
is any indication that jurors considered the
fresh-complaint testimony for an improper
purpose. See, e.g., State v. Williams, 377
N.J. Super. 130, 152,
871 A.2d 744 (App.

5 A-3540-14T4
Div.), certif. denied,
185 N.J. 297, 884 A.2d 1266 (2005). However, if the State's case is
particularly strong, any fresh-complaint
instruction errors may be deemed harmless.
[State v.] Tirone, supra, 64 N.J. [222,] at
227,
314 A.2d 601 [(1974)].

We realize the judge, at first, limited the fresh-complaint

testimony to the disclosure of "the nature of the [c]omplaint, the

time and place where the victim made the [f]resh [c]omplaint. The

circumstances under which it was made. That it was made to [S.K.]"

He later clarified that the "circumstances" included "the number

of times and the time frame involved." He expressed concern to

defense counsel that if he limited the disclosure to, "Dad raped

me," an inference might be drawn that defendant committed acts

other than those charged. Because his ruling was handed down some

ten months prior to trial, he invited defense counsel to advise

him and the prosecutor at the pre-trial conference if she preferred

a wider disclosure. There is no record of any follow-up discussion

at the pre-trial conference, nor was there an objection to S.K.'s

testimony at trial.

Fresh-complaint testimony may include some details of a

defendant's actions to identify the nature of the complaint. State

v. Balles,
47 N.J. 331, 339 (1966), cert. denied,
388 U.S. 461,

87 S. Ct. 2120,
18 L. Ed. 2d 1321 (1967). Here, we conclude the

disclosure of the details of defendant's actions was not plain

6 A-3540-14T4
error. The word, "rape," is a broad term. This trial involved

allegations of varied sex acts. Some detail specifying what K.K.

meant when she disclosed to her mother that she was "raped" was

warranted. The jury, when considering the fresh complaint for its

proper purpose, had to know the nature of the complaint made to

S.K. S.K. described many sex acts, but we are mindful that K.K.

endured many sex acts. S.K.'s words were not particularly

delicate, but neither were the acts; the brief descriptions were

plain-spoken, not overly provocative. S.K. did not elaborate in

great detail. She did not provide more detail than that which was

contained in the charges presented to the jury. Cf. State v.

J.S.,
222 N.J. Super. 247, 254-55 (App. Div.) (finding prejudice

where the fresh-complaint witness testified about acts that formed

the basis of charges against the defendant that had been

dismissed), certif. denied,
111 N.J. 588 (1988). Like the

testimony in Balles, supra,
47 N.J. at 339, S.K. identified the

nature of K.K.'s complaint.

Even if S.K. did provide immoderate details, it did not rise

to plain error. The judge comprehended the bounds of S.K.'s

testimony and tailored the model jury charge to include mention,

not only of the note K.K. had given to her mother indicating that

her father raped her, but also of S.K.'s discussion of the

"specific details of the alleged abuse." The jury was thus

7 A-3540-14T4
instructed to consider the note and the details of the abuse only

under the parameters of the fresh-complaint instruction. The jury

is presumed to have followed same. See State v. Muhammad,
145 N.J. 23, 52 (1996).

Moreover, S.K.'s testimony was far less extensive than K.K.'s

testimony describing acts of fellatio, penile-to-anal penetration,

cunnilingus, digital-to-vaginal penetration and digital-to-anal

penetration. Any error in admitting S.K.'s testimony was harmless.

See State v. Queen,
221 N.J. Super. 601, 608-09 (App. Div.)

(finding "[a]ny error" to be harmless where victim provided

"detailed and substantially identical narrative in her own

testimony about the incident which led to the criminal charge"),

certif. denied,
110 N.J. 506 (1988). Cf. State v. R.K., supra,

220 N.J. at 459-60 (finding cumulative prejudice when a fresh-

complaint witness's testimony and demonstration of a sexual act

before the jury was more descriptive and provocative than the

victim's, and where the fresh-complaint witness also testified

about threats by the defendant to the victim – threats not

testified to by the victim during trial). We conclude there was

no error, and certainly not plain error, concerning the fresh-

complaint testimony and concomitant jury instructions.

The State did not seek to admit the disclosure to S.K. under

the tender years exception, N.J.R.E. 803(c)(27), and, as a result,

8 A-3540-14T4
the judge did not conduct a hearing or make findings pursuant to

that evidence rule. We therefore decline to address the State's

argument that S.K.'s testimony would have been admitted as

substantive evidence. See State v. Robinson,
200 N.J. 1, 19-22

(2009).

II.

Based on K.K.'s disclosure that after defendant ejaculated

in her mouth she spit semen on the bedroom carpet, the State

removed carpet samples from the bedroom during its investigation

and had them tested. The State introduced expert forensic DNA

analysis testimony at trial that testing on the sole carpet sample

on which semen was detected revealed defendant was the source of

the DNA profile obtained from the non-sperm cell fraction5 and the

source of the major DNA profile obtained from the sperm cell

fraction.6 That mixture of DNA from the sperm cell fraction was

described by the expert as "a very low level mixture." She

elaborated:

As for the minor component of the
mixture, I only detected one allele. So at
all of those [fifteen] locations, only at one
of them was there one very minor allele. And

5
A non-sperm cell fraction contains DNA extracted from cells other
than sperm.
6
A sperm cell fraction contains DNA derived from sperm cells in
what was a mixture of DNA profiles.

9 A-3540-14T4
when I did compare that to [K.K.], she is
excluded as a possible contributor to the
minor DNA profile obtained from [the carpet
sample].7

During her summation, the assistant prosecutor argued to the

jury that the expert found defendant was the source of the sperm.

She also said, "Now, [the expert] does indicate that she has to

exclude [K.K.], but why? Remember also the other part of her

testimony? She talked to you about loci and that there was not

enough there in the saliva portion. That's what she said. That's

what we know."

7
The expert testified:

[A]llele is the term we use for form of DNA.
So we do [fifteen] [short tandem repeat] tests
in our laboratory. So we're looking at
[fifteen] locations on your DNA.

And locations on your DNA are called
locus, loci for plural. . . .

. . . .

The allele form of DNA, each person is
going to have two forms at every locus or
location or gene, one from their mother, one
from their father.

. . . So for each individual, you would
expect two numbers at each location, one from
mom, one from dad, and that is what the results
in the allele table summarizes, the actual
numerical DNA profiles from each sample . . .
.

10 A-3540-14T4
Defendant claims he was denied a fair trial because the

assistant prosecutor misled the jury as to the DNA results, and

because the trial judge did not offer a proper curative

instruction. Defendant did not object to the State's summation

or request a jury instruction.

To warrant reversal, a prosecutor's conduct must have

"substantially prejudiced defendant's fundamental right to have a

jury fairly evaluate the merits of his defense." State v.

Timmendequas,
161 N.J. 515, 575 (1999), cert. denied,
534 U.S. 858,
122 S. Ct. 136,
151 L. Ed. 2d 89 (2001). "In determining

whether prosecutorial misconduct is prejudicial and denied

defendant a fair trial, we consider whether defense counsel made

a timely and proper objection, whether the remark was withdrawn

promptly, and whether the court ordered the remarks stricken from

the record and instructed the jury to disregard them." State v.

Ramseur,
106 N.J. 123, 322-23 (1987). If counsel does not object

at trial, "the remarks usually will not be deemed prejudicial."

Id. at 323.

The assistant prosecutor incorrectly described the expert's

testimony. The expert did not relate her exclusion of K.K. as a

source because there were an insufficient number of loci. That

brief statement, however, did not substantially prejudice

11 A-3540-14T4
defendant's right to have the jury evaluate the merits of his

defense so as to require reversal.

The expert testified that, after obtaining numerical DNA

profiles, comparisons are made and three results can follow: an

individual can be excluded as a contributor to a sample, included

as a contributor, or the results can by inconclusive "either way."

The jury heard the expert testify that K.K. was excluded; and then

heard a play-back of her testimony during deliberations. The

expert's report that was admitted in evidence read, "[K.K.] is

excluded as a possible contributor to the minor DNA profile

obtained from [the specimen]." Moreover, even considering the

assistant prosecutor's remark, there was no evidence that K.K.'s

DNA – for whatever reason – was in that sample.

Further, defense counsel adamantly told the jury the expert

concluded K.K. was

excluded as the contributor for the minor DNA
profile.

Excluded. That means that the semen they
found on the floor was not mixed with [K.K.'s]
DNA. You heard it correctly.

Despite the fact that [K.K.] vehemently
believed and testified and pointed out that
this section [of] carpet is where she spat,
her DNA is not found anywhere on this [twenty]
by [nineteen] piece of carpet, and it's in
evidence.

12 A-3540-14T4
Defense counsel continued, "[i]f [K.K.] had actually performed

oral sex on her father like she testified, there would have not

only been a significant amount of staining on the carpet but it

would have been mixed with [K.K.'s] DNA" (emphasis added).

Lastly, the judge gave the standard charge to the jury that

summations were not evidence and that the jurors, as the sole

judges of the facts, had to rely solely on their understanding and

recollection of the evidence admitted at trial.

The assistant prosecutor's brief comment on the expert's

testimony was not sufficient to substantially prejudice

defendant's right to have the jury evaluate his defenses.

III.

Defendant further claims his sentence was based on improper

aggravating factors and that the consecutive sentence on Count

Four was not warranted because it involved the same acts and the

same victim as the other counts.

Contrary to defendant's contention, the judge properly found

aggravating factor two,
N.J.S.A. 2C:44-1(a)(2), applied to Counts

One, Two and Four. The judge did not base his determination

regarding this factor only on the victim's age. He stressed that

the factor applied because K.K. was defendant's child, finding

that relationship, combined with her youth, rendered her incapable

of exercising normal physical or mental power of resistance, a

13 A-3540-14T4
fact defendant knew or should have known. K.K.'s youth, an element

of Counts One, Two and Four, was not double counted; it was applied

only in relation to her inability to resist defendant, and only

as it related to the predominant fact that defendant was her

father.

We also conclude the judge properly found a risk defendant

would commit another offense, aggravating factor three,
N.J.S.A.

2C:44-1(a)(3), by crediting the report of the doctor from the

Adult Diagnostic and Treatment Center, in which the doctor opined

that defendant needed therapy which he "declines and resists."

The judge found "defendant's lack of receptiveness to any kind of

treatment" increased the likelihood he would commit similar

offenses.

So too, the judge's conclusion that aggravating factor nine,

N.J.S.A. 2C:44-1(a)(9), deserved "full weight" was supported by

the evidence. The judge described defendant's crimes as

"abhorrent." In light of the number of acts committed against

defendant's own daughter, the judge's assessment was correct.

If a sentencing judge properly identifies and balances the

factors, and their existence is supported by sufficient credible

evidence in the record, an appellate court should affirm the

sentence. State v. Carey,
168 N.J. 413, 426-27 (2001); State v.

14 A-3540-14T4
Megargel,
143 N.J. 484, 493-94 (1996). We conclude the judge's

sentence conformed to those principles.

We do not conclude, however, that the judge's reasons for

imposing a consecutive sentence on Count Four were clearly set

forth on the record. See State v. Miller,
205 N.J. 109, 129

(2011)(holding, "if the [sentencing] court does not explain why

consecutive sentences are warranted, a remand is ordinarily needed

for the judge to place his reasons on the record"). Although the

judge indicated "the crimes and their objectives are independent

– here, endangering as opposed to the sexual assaults" – he only

parroted the "no free crimes" and "multiple offenses" Yarbough

factors.8 The allegations against defendant in the first count of

8
The Yarbough factors are:

(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their objectives
were predominantly independent of
each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so

15 A-3540-14T4
the indictment involved anal penetration; the second count stemmed

from having his daughter perform fellatio upon him. The sexual

conduct alleged in connection with the endangering charge involved

"oral[-]to[-]genital penetration" and "genital[-]to[-]anal

penetration." We recognize that a determination of the jury's

finding as to Count Four may be impossible. The verdict sheet did

not contain separate jury questions as to the conduct alleged in

connection with the endangering charge. Nor was it clear if the

"oral[-]to[-]genital penetration" pertained to fellatio – as

charged in Count Two – or to cunnilingus, which was also alleged

by K.K. but never attributed to a specific count in the indictment.

closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense[.]

[State v. Yarbough,
100 N.J. 627, 643-44
(1985) (footnote omitted), cert. denied, 475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed. 2d 308
(1986).]

A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action. See State v.
Eisenman,
153 N.J. 462, 478-79 (1998).

16 A-3540-14T4
Furthermore, the judge did not specifically address the balance

of the Yarbough factors by stating the facts that pertain to each

one. See State v. Yarbough,
100 N.J. 627, 643-44 (1985), cert.

denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986).

We are compelled to remand this case for sentencing at which the

judge should clearly indicate – utilizing the Yarbough factors –

the basis for imposing the consecutive sentence on Count Four.

Affirmed in part, remanded for resentencing. We do not retain

jurisdiction.

17 A-3540-14T4

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