STATE OF NEW JERSEY v. JOSE D. LOPEZ-DURANGO

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                            NOT FOR PUBLICATION WITHOUT THE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
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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-4252-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,
v.

JOSE D. LOPEZ-DURANGO,
a/k/a JOSE D. DURANGO,
LOSE D. DURANGO, and
JOSE D. LOPEZ,

     Defendant-Appellant.
_____________________________

                 Submitted October 3, 2018 — Decided October 15, 2018

                 Before Judges Koblitz and Ostrer.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Passaic County, Indictment No. 14-06-0557.

                 Joseph E. Krakora, Public Defender, attorney for
                 appellant (Daniel S. Rockoff, Assistant Deputy Public
                 Defender, of counsel and on the brief).

                 Gubir S. Grewal, Attorney General, attorney for
                 respondent (Arielle E. Katz, Deputy Attorney General,
                 of counsel and on the brief).

PER CURIAM
      Defendant priest Jose D. Lopez-Durango appeals from his conviction after

trial of second-degree luring,  N.J.S.A. 2C:13-6, third-degree endangering the

welfare of a child,  N.J.S.A. 2C:24-4(a)(1), and fourth-degree criminal sexual

contact,  N.J.S.A. 2C:14-3(b), for which he was sentenced to an aggregate term

of six years in prison, parole supervision for life, and all additional mandatory

penalties. He was acquitted of second-degree attempted sexual assault,  N.J.S.A.

2C:5-1 and  N.J.S.A. 2C:14-2(c)(4). He argues for the first time on appeal that

the court should have cautioned the jury regarding its use of fresh complaint

testimony. Having determined that, in light of the defense strategy, the jury

charge was not clearly capable of producing an unjust result, we affirm.

      The victim, S.M., 1 testified that she lived across the street from her

family's church and developed a close relationship with defendant, one of the

three priests at that church. She said she began texting him when she was

fourteen years old. On one occasion, he hugged her in a way that made her

uncomfortable in a back room of the church. On January 20, 2013, she went to

speak with him in the church and he led her into the living quarters, into a room

with a couch. Defendant then put his arm around her and kissed her cheek, put



1
 We use initials to preserve the confidentiality of the child victim. R. 1:38-
3(c)(9), (12).
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his hand under her shirt and rubbed her belly, and moved S.M. onto his lap. He

locked his legs around hers, put his hand under her shirt, rubbed her back and

"grind[ed]" on her by opening and closing his legs. When defendant tried to flip

her over, he fell and she told defendant to stop. Defendant stopped, apologized

and asked S.M. if she "liked it." S.M. said no and left.

      That same day, S.M. told her cousin, the church maintenance man and her

uncle what happened.     She did not tell her mother until later.     Her uncle

confronted defendant with S.M. and told defendant to apologize.

      S.M. continued to text defendant, but shortly before her fifteenth birthday

celebration, or "quinceañera," she asked another priest, Father Edgar, not to let

defendant perform the celebratory mass.       She told Father Edgar about the

incident, but asked that the police not become involved.          Father Edgar

confronted defendant who admitted S.M. had been in his room.

      Church authorities notified the Prosecutors Office, which called defendant

in to discuss the allegation. Defendant then spoke to S.M.'s mother, admitting

he "went too far" and had kissed and hugged her daughter while she was sitting

on his lap.

      Without defense objection, the State called Father Edgar and S.M.'s

mother to testify that S.M. reported the incident to them. Without objection,


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both testified in detail about what S.M. told them and both were cross-examined

extensively on S.M.'s report to them. Defense counsel also called as a witness

and examined the maintenance worker about S.M.'s report to him of the incident

when it occurred. Defense counsel brought out that when the maintenance man

spoke to S.M. about the incident, he concluded that defendant had not physically

touched S.M. inappropriately.

      In summation, defense counsel dwelled on the fact that S.M. elaborated

on the incident in her trial testimony, beyond what she had told the witnesses

closer in time. He emphasized that the child did not use the word "grind" in

relationship to defendant's actions until her testimony in court. Counsel argued

that while defendant should not have taken S.M. into the living quarters of the

church, defendant did not lure S.M. or attempt to sexually assault S.M., as he

was charged.

      On appeal, defendant raises the following issue as plain error:

            I. THE COURT ERRED BY FAILING TO INSTRUCT
            JURORS NOT TO USE GRAPHIC TESTIMONY
            ABOUT AN OUT-OF-COURT COMPLAINT AS
            PROOF THAT THE COMPLAINT WAS TRUE. U.S.
            CONST., AMENDS. V, XIV; N.J. CONST., ART. I,
            PARS. 1. 9. 10.

      As an uncodified hearsay exception, the fresh-complaint rule allows the

State to introduce a sexual victim's out-of-court revelation of such conduct to a

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confidante shortly after the conduct occurs. The fresh-complaint testimony

negates a defense inference that the alleged offense must have been contrived

because the victim did not promptly tell anyone about it. See State v. J.A.,  398 N.J. Super. 511, 517 (App. Div. 2008); State v. Hill,  121 N.J. 150, 163 (1990).

      "A witness may testify only to the general nature of the complaint, and

unnecessary details of what happened should not be repeated." State v. W.B.,

 205 N.J. 588, 617 (2011). Additionally, defendant is ordinarily entitled to a jury

charge cautioning the jury as to the use of fresh complaint evidence. See State

v. Mauti,  448 N.J. Super. 275, 318 (App. Div. 2017).

      Adequate and understandable jury instructions are "[a]n essential

ingredient of a fair trial." State v. Afanador,  151 N.J. 41, 54 (1997). It has long

been recognized that the "charge is a road map to guide the jury and without an

appropriate charge a jury can take a wrong turn in its deliberations." State v.

Gartland,  149 N.J. 456, 475 (1997) (quoting State v. Martin,  119 N.J. 2, 15

(1990)). A defendant is required to challenge the jury instructions by objecting

before the jury retires so that the trial court may cure any defect in the charge.

R. 1:7-2.

      Where, as here, there is a failure to object, we will reverse only if we find

plain error. R. 2:10-2. Plain error in the context of a jury charge is "[l]egal


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impropriety in the charge prejudicially affecting the substantial rights of the

defendant sufficiently grievous to justify notice by the reviewing court and to

convince the court that of itself the error possessed a clear capacity to bring

about an unjust result." Afanador,  151 N.J. at 54 (quoting State v. Jordan,  147 N.J. 409, 422 (1997)). Generally, "[e]rroneous instructions are poor candidates

for rehabilitation . . . and are ordinarily presumed to be reversible error." Ibid.

      The model jury fresh complaint charge states, with the footnotes deleted:

                   In this case, you heard testimony that sometime
            after the alleged sexual offense,     (name)
            complained to                          about what had
            taken place. More particularly, there was testimony
            that... (The court should specify for the jury the
            particular testimony to which the fresh complaint rule
            applies.)
                   The law recognizes that people might assume that
            anyone subjected to a sexual offense would complain
            within a reasonable time to someone whom (he/she)
            would ordinarily turn for sympathy, protection or
            advice. If there was no evidence that        (name)
                     made such a complaint, some might conclude
            that no sexual offense occurred.
                   As a result, in cases involving an allegation of a
            sexual offense, the State is permitted to introduce
            evidence of the complaint. The only reason that the
            evidence is permitted is to negate the inference that
                   (name)              failed to confide in anyone
            about the sexual offense. In other words, the narrow
            purpose of the fresh-complaint rule is to allow the State
            to introduce such evidence to negate any inference that
                    (name)       failed to tell anyone about the


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sexual offense, and that, therefore, (his/her) later
assertion could not be believed.
       A fresh-complaint is not evidence that the sexual
offense actually occurred, or that     (name)
is credible. It merely serves to negate any inference
that because of (his/her) assumed silence, the offense
did not occur.       It does not strengthen (his/her)
credibility. It does not prove the underlying truth of the
sexual offense. A fresh-complaint only dispels any
negative inference that might be made from (his/her)
assumed silence.
       In determining whether a complaint was in fact
made, you may consider all the relevant factors in
evidence. You may consider your observations of the
age and demeanor of       (name), your evaluation of
(his/her) background, including (his/her) relationship,
if any, with the defendant and the nature of (his/her)
relationship with          (the person to whom the
complaint was made). In this context, you may
consider the timeliness of the complaint and the
likelihood that           (name)              would
complain under the circumstances described. If there
was a delay in making the complaint, you may consider
whether any circumstances existed which would
explain the delay. You may consider the conduct and
demeanor of         (name)        at the time of the
complaint as well as (his/her) physical or mental
condition (including any evidence of physical injury).
       You may also consider whether the complaint
was volunteered by               (name)             or
whether it was the result of interrogation. If you find
that (name)                  made the complaint after
being questioned, you may consider what prompted the
questioning, whether the questions were in response to
some conduct, emotional or physical condition,
statement or pattern of behavior of (name)
       , or whether they were initiated by the questioner
without any provocation. You may also consider the

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                            7
            nature and extent of the questions themselves and any
            motive on the part of the person who asked them in
            determining whether the complaint was truly that of
                  (name)              or was the product of
            suggestion by others.
                  It is, of course, up to you to determine what the
            facts are with regard to the circumstances of the
            complaint and what weight to give to these facts in
            determining whether or not a complaint was made.
                  As I have indicated earlier, this testimony was
            permitted for a limited purpose. The making of a
            complaint is not an element of the offense. Proof that
            a complaint was made is neither proof that the sexual
            offense occurred nor proof that       (name)
            was truthful. It merely dispels any negative inference
            that might arise from (his/her) assumed silence. It
            eliminates any negative inference that (his/her) claims
            of having been sexually assaulted are false because of
            (his/her) assumed failure to have confided in anyone
            about the sexual offense.

            [Model Jury Charges (Criminal), "Fresh Complaint"
            (rev. Feb. 5, 2007).]

Defense counsel did not request this charge, nor object when it was not given

by the court. The charge would have undercut defense counsel's strategy.

      In this unusual factual scenario, where defense counsel emphasized the

victim's complaints to others as evidence of her lack of credibility and dwelled

on the precise wording and details of her fresh complaints, the failure to caution

the jury about the limited use of fresh complaint evidence does not constitute

plain error. Rather, defendant urged the jury to use the fresh complaint evidence


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for purposes well beyond an explanation of the delay in contacting authorities.

Defense counsel asked the jury to consider S.M.'s prior versions of what

happened to discredit her trial testimony. The fresh complaint evidence was in

effect used by the defense as an exceptions to the hearsay rule, under N.J.R.E.

803(a)(1), as prior contradictory statements of the victim. This use of the fresh

complaint testimony explains why counsel did not ask for a limiting instruction.

The jury may well have accepted this defense argument, as it acquitted defendant

of the serious attempted sexual assault charge.

      In this context the failure to give the model fresh complaint charge was

defense strategy and does not constitute plain error. "[W]hen a defendant later

claims that a trial court was mistaken for allowing him to pursue a chosen

strategy—a strategy not unreasonable on its face but one that did not result in a

favorable outcome—his claim may be barred by the invited-error doctrine."

State v. Williams,  219 N.J. 89, 100 (2014). While defense counsel did not

request that the fresh complaint charge be omitted, his elicitation of other fresh

complaint testimony from the maintenance man, and his summation dwelling on

the victim's inconsistent prior statements, presents a factual backdrop akin to

invited error.

      Affirmed.


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