STATE OF NEW JERSEY v. RUSSELL M. BOUSE, JR

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3086-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RUSSELL M. BOUSE, JR.,

     Defendant-Appellant.
________________________________

              Submitted April 10, 2018 – Decided April 20, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Indictment
              No. 10-12-1057.

              Hegge & Confusione, LLC, attorneys for
              appellant (Michael J. Confusione, of counsel
              and on the brief).

              Charles A. Fiore, Acting Gloucester County
              Prosecutor, attorney for respondent (Margaret
              A.   Cipparrone,  Special   Deputy   Attorney
              General/Acting Senior Assistant Prosecutor,
              on the brief).

PER CURIAM

        Defendant appeals his conviction of fourth-degree criminal

sexual contact, 
N.J.S.A. 2C:14-3(b).              We affirm.
     In March 2010, R.G., the victim, was at defendant's apartment

with defendant's niece and two nephews.    R.G. alleges defendant

inappropriately touched her when R.G. and defendant's niece were

sleeping in defendant's bed.

     In July 2010, a grand jury indicted defendant on second-

degree sexual assault, 
N.J.S.A. 2C:14-2(c)(1), and fourth-degree

criminal sexual contact, 
N.J.S.A. 2C:14-3(b).    In March 2012, a

jury found defendant guilty on both counts.

     A judge granted defendant's motion for a new trial pursuant

to Rule 3:20-2. Defendant waived his right to a jury trial and

requested a bench trial, which occurred over several days with

several testifying witnesses.   In January 2017, the trial judge

issued a written decision finding defendant guilty of fourth-

degree criminal sexual contact, and not guilty of second-degree

sexual assault. Defendant was sentenced to two years of probation,

conditioned upon 180 days of imprisonment, with the imposition of

Megan's Law.

     On appeal, defendant argues:

          POINT I
          THE TRIAL COURT ERRED IN FINDING THAT THE
          STATE HAD PROVEN BEYOND A REASONABLE DOUBT
          DEFENDANT'S GUILT OF THE FOURTH-DEGREE SEXUAL
          CONTACT CHARGE.




                                2                          A-3086-16T1
          POINT II
          THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO
          CHOOSE WHETHER TO TESTIFY (not raised below;
          plain error).

          POINT III
          THE TRIAL JUDGE IMPROPERLY FOISTED A BURDEN
          ON DEFENDANT TO PRESENT EVIDENCE IN HIS
          DEFENSE (plain error; not raised below).

          POINT IV
          DEFENDANT'S     SENTENCE       IS    IMPROPER    AND
          EXCESSIVE.

     Defendant   first   argues   that   the   record   lacks   sufficient

credible evidence to support the judge's finding of guilt because

the judge found R.G., the State's primary witness, not credible

and her testimony exaggerated.     Furthermore, defendant argues that

the judge's determination rendered inconsistent verdicts.

     Our review of a judge's verdict in a non-jury case is limited.

"The standard is whether there is sufficient credible evidence in

the record to support the judge's determination."          State ex rel.

R.V., 
280 N.J. Super. 118, 121 (App. Div. 1995).           We exercise a

limited scope of review of a trial judge's findings of fact.           Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 
65 N.J. 474, 483-84

(1974).   Further, we "give deference to those findings of the

trial judge which are substantially influenced by his opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy."         State v. Elders, 192 N.J.



                                   3                               A-3086-16T1
224, 244 (2007) (quoting State v. Johnson, 
42 N.J. 146, 161

(1964)).

    The judge found that R.G. lacked credibility in portions of

her testimony when she explained some of the events that occurred

at defendant's apartment.        The judge had "issues with R.G.'s

credibility," explaining

           [t]here      were      inconsistencies      and
           contradictions between her many statements and
           her present testimony. Much of this is not
           uncommon and thus is understandable when
           evaluating   credibility.       However,   some
           concerned facts where there should be no
           inconsistencies or contradictions.         R.G.
           stated that she was in a deep sleep during the
           digital penetration but later stated that she
           was awake. She testified repeatedly that she
           thought she may have been having a sex dream,
           but again was awakened to find his fingers in
           her vagina. The vigorous digital penetration
           lasting up to fifteen minutes was not
           corroborated   by   [the    nurse's]   physical
           examination. The fact that R.G. disclosed for
           the first time at trial, the second trial,
           that she felt the defendant's penis in the
           area of her vagina after he rolled her over
           and mounted her, is a critical fact that is
           too critical, if true, to have remained
           undisclosed for six and a half years. While
           many aspects of her testimony ring true, these
           added details appear to the trier of fact and
           the   determiner    of   credibility    to   be
           embellishments [in] her story to make it more
           dramatic and thus more compelling.

           [footnote omitted.]

    Considering his issues with R.G.'s credibility and finding

that the State failed to prove beyond a reasonable doubt that

                                   4                         A-3086-16T1
defendant penetrated R.G., the judge found defendant not guilty

of   second-degree   sexual      assault.        However,     the   judge     found

defendant guilty of fourth-degree sexual contact by finding R.G.

credible in testifying that "[d]efendant turned her onto her

stomach and felt [d]efendant's full weight on her back. [R.G.]

then felt [d]efendant's penis touch her back."              Although the judge

noted that R.G. embellished her testimony to include for the first

time that she felt defendant's penis in the area of her vagina,

the judge declined to disregard all of R.G.'s testimony                          and

concluded aspects of the testimony "reasonable."

      The judge also considered other witnesses' testimonies.                      He

found defendant's niece not credible and his two nephews marginally

credible,   yet   noted   that    the       nephews'   testimonies    contained

inconsistencies with each other.

      There exists sufficient credible evidence in the record to

support the judge's finding that defendant is guilty of fourth-

degree sexual contact. The judge properly concluded that defendant

had committed an act of sexual contact with R.G., and defendant

used physical force or coercion in making the contact.                  The judge

found R.G. credible in her account of defendant being on top of

her back, and feeling his penis.

      Defendant's    contention     that      the   judge's    ruling    created

inconsistent verdicts between the two counts is without merit.

                                        5                                   A-3086-16T1
The judge in his written decision parsed R.G.'s testimony in

finding defendant guilty of fourth-degree sexual contact, but not

guilty of second-degree sexual assault.              Inconsistent verdicts are

sustainable     if   there    is     sufficient    evidence     to   support   the

conviction.     State v. Grey, 
147 N.J. 4, 10-11 (1996).             Here, there

exists sufficient evidence to support defendant's conviction of

fourth-degree sexual contact.

     Defendant next argues that his constitutional right not to

testify at the re-trial was violated when his testimony from his

first   trial    was   read    into     evidence     at   the   re-trial.        He

specifically     alleges      that    the    judge    failed    to   review    his

voluntariness to testify at the first trial.                  Defendant did not

object to the admission of this testimony, and at re-trial, his

counsel agreed to the admissibility of the testimony. Accordingly,

we review for plain error.           R. 2:10-2.

     N.J.R.E. 804(b)(1)(A), which permits the use of a defendant's

prior testimony at a later proceeding, states:

           Testimony given by a witness at a prior trial
           of the same or a different matter, or in a
           hearing or deposition taken in compliance with
           law in the course of the same or another
           proceeding, if the party against whom the
           testimony is now offered had an opportunity
           and similar motive in the prior trial, hearing
           or proceeding to develop the testimony by
           examination or cross-examination.



                                         6                                A-3086-16T1
Our Supreme Court explained the application of this rule in State

v. Wilson, 
57 N.J. 39 (1970).           In Wilson, the defendant argued

that the trial court erred in allowing his prior testimony to be

read into evidence because it failed to establish a foundation of

voluntariness. Id. at 46-47. The Court found defendant's argument

meritless because he was represented by competent counsel at his

first trial and his decision to testify was tactical.                  Id. at 47.

     Defendant argues that Harrison v. United States, 
392 U.S. 219

(1968), precludes the use of his testimony from the first trial

in the re-trial.   Defendant's reliance on Harrison is misplaced.

Harrison excludes admission of a defendant's prior testimony in a

re-trial when the testimony was impelled from illegal confessions

introduced   against   him   at   the       first    trial.     Id.   at   223-26.

Defendant has failed to allege any illegal confession or misconduct

that would have violated his constitutional right to testify at

the first trial and would require examination of that choice.

     Defendant   willingly    testified         at    the     first   trial,    was

represented by competent counsel, and made a tactical decision to

testify.   Defendant chose not to testify at the re-trial, and upon

the prosecutor's motion, the judge properly ruled defendant's

testimony admissible pursuant to N.J.R.E. 804(b)(1)(A), a hearsay

exception, because defendant's decision not to testify made him

unavailable.   See State v. Farquharson, 
321 N.J. Super. 117, 122-

                                        7                                  A-3086-16T1
23 (App. Div. 1999). Defendant's counsel agreed without objection.

We see no error in the admission of defendant's prior testimony

at the re-trial.

     Next, defendant argues that the judge foisted a burden upon

him to produce evidence in his defense.           Defendant did not raise

this issue below and we review for plain error.           R. 2:10-2.

     The burden of proof in a criminal trial lies with the State

to prove every element of the charged offense, State v. Medina,


147 N.J. 43, 60-61 (1996), and it never shifts to a defendant,

State v. Loftin, 
146 N.J. 295, 389 (1996).              In a bench trial,

judges are presumed to follow their own instructions and principles

of procedure. Harris v. Rivera, 
454 U.S. 339, 346-47 (1981). This

includes a judge's ability to filter through inadmissible evidence

and not to make adverse inferences regarding a defendant's failure

to testify.    Id. at 346.

     Defendant contends that in the judge's written decision, he

improperly    foisted   a   burden   upon   defendant    when   he    stated,

"defendant claims to have called . . . individuals when he was

searching for R.G., his niece and nephews.             Where are the cell

phone records to corroborate the mere fact of those calls?"                The

judge's   comment   concluded    his     review   of    defendant's     prior

testimony, and he found defendant's version of events to make

"little sense."     The judge specifically questioned defendant's

                                     8                                A-3086-16T1
account of the teenagers leaving his apartment, searching for

them, and making phone calls to them and their parents.                   The

judge's comment merely provided one reason why he, as the fact-

finder, did not accept defendant's version of events, and did not

improperly shift the burden to defendant. In his written decision,

the judge also properly explained that the burden of proof lied

solely on the State.     We see no error.

     Lastly, defendant argues that the judge imposed an improper

and excessive sentence. Defendant argues that the judge erred

because there is a presumption of non-imprisonment attached to

fourth-degree crimes, and the aggravating factors here did not

warrant two years of probation, conditioned upon 180 days in county

jail.

     When reviewing a sentence, we must ensure that the trial

judge   followed   the   sentencing       guidelines   promulgated   in   the

criminal code. We must (1) "require that an exercise of discretion

be based upon findings of fact that are grounded in competent,

reasonably credible evidence"; (2) "require that the fact[-]finder

apply correct legal principles in exercising its discretion"; and

(3) modify sentences only when the facts and law show "such a

clear error of judgment that it shocks the judicial conscience."

State v. Roth, 
95 N.J. 334, 363-64 (1984).             We must also ensure

that the sentencing guidelines were not violated, determine that

                                      9                              A-3086-16T1
findings on aggravating and mitigating factors were based on the

evidence, and decide whether application of the guidelines makes

a particular sentence clearly unreasonable.     Id. at 364-65.

     
N.J.S.A. 2C:44-1(e) states in part:

          The court shall deal with a person convicted
          of an offense other than a crime of the first
          or second degree, who has not previously been
          convicted of an offense, without imposing a
          sentence of imprisonment unless, having regard
          to the nature and circumstances of the offense
          and the history, character and condition of
          the defendant, it is of the opinion that his
          imprisonment is necessary for the protection
          of the public under the criteria set forth in
          subsection [(a)] . . . .

Thus, a defendant who was convicted of a third- or fourth-degree

crime, and who has not been previously convicted of another crime,

is entitled to a presumption against imprisonment. However, judges

are permitted to impose a term of imprisonment as a condition of

probation even when the presumption against imprisonment exists.

State v. Hartye, 
105 N.J. 411, 419-20 (1987).    The judge properly

applied the sentencing guidelines and defendant's imprisonment is

permissible as a condition of his probation.      The judge did not

impose an improper or excessive sentence.

     Affirmed.




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