STATE OF NEW JERSEY VS. E.C. (18-03-0633, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-3491-18T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
E.C.,
Defendant-Respondent.
_____________________________
Argued May 30, 2019 – Decided June 19, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 18-03-0633.
Michael A. Mink, Assistant Prosecutor, argued the
cause for appellant (Mary Eva Colalillo, Camden
County Prosecutor, attorney; Michael A. Mink, on the
briefs).
Eric James Liszewski, Assistant Deputy Public
Defender, argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Eric James
Liszewski, of counsel and on the briefs).
PER CURIUM
After defendant E.C.'s juvenile charges were involuntarily waived to the
Law Division, Criminal Part, he was indicted for sexual crimes committed
against his younger sisters, J.C. and S.C.: first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A.
2C:14-2(c)(3)(a) (count two); first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (count three); second-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (count four); second-degree sexual assault, N.J.S.A. 2C:14-2(b)
(count five); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a)(1) (count six); third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(1) (count seven); and third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a)(1) (count eight). 1 Although the State initially
charged defendant with sexual crimes that began when defendant was eleven
years-old, it agreed to amend the indictment to charge only those crimes that
occurred after his fifteenth birthday.
The State moved to admit evidence that J.C. and S.C. were sexually
assaulted before defendant's fifteenth birthday as either intrinsic or Rule 404(b)
1
The juvenile court has exclusive jurisdiction over defendants under the age of
eighteen, N.J.S.A. 2A:4A-24, but jurisdiction can be waived and the case sent
to the Criminal Part for certain enumerated crimes – including sexual assault –
when a defendant commits any such crimes between the ages of fifteen and
eighteen, N.J.S.A. 2A:4A-26.1(c).
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evidence. N.J.R.E. 404(b). The State, by leave granted, appeals from the trial
court's denial of its motion. Under the narrow parameters of the record before
us, we affirm because the trial court did not abuse its discretion in denying the
State's motion. State v. Gorthy, 226 N.J. 516, 539 (2016).
We are unpersuaded by the State's argument that our holding in State v.
L.P., 338 N.J. Super. 227 (App. Div. 2001), countenances the admission of
evidence of the prior assaults because the evidence in L.P. was admitted under
a disused theory. There we decided that evidence of the defendant's sexual
assaults of the victim prior to the dates charged in the indictment was admissible
as atypical res gestae evidence, id. at 236, to explain to the jury the victim's
inability to report continuing assaults because of helplessness engendered by her
family's reaction to her first complaints: "the callous instruction 'to wear a pad,'"
id. at 238-40. Here, the State argues that the prior acts evidence explains the
entire history of defendant's treatment of the victims who "underwent years of
grooming and sexual abuse."
Our Supreme Court, however, in State v. Rose, concluded the "continued
use of the moniker of res gestae adds nothing more than an interpretative
descriptor that risks clouding an evidence-rule analysis or, worse, avoiding its
required rigor through invocation of a result-infused term." 206 N.J. 141, 175
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(2011). The Court disapproved "the further use of res gestae to support
evidential rulings," id. at 182, and, instead, directed trial courts to analyze the
admissibility of uncharged bad act evidence: "The threshold determination
under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is
subject to continued analysis under Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the evidence rules
relating to relevancy, most importantly Rule 403." Id. at 179.
The trial court properly analyzed the evidence under those discrete lenses
and determined the evidence of the prior acts – described by J.C. generally as
"naked fondling" where defendant would put a belt around her legs and place
his penis between her thighs, in her mouth or on her breasts "two or three times
a week," until she was about eleven or twelve 2 – did not meet the admissibility
criteria of either theory. 3
2
Defendant was born on March 26, 1990; J.C. on December 6, 1993; and S.C.
on March 28, 1997. When J.C. was twelve, defendant was fifteen years old.
3
S.C. could not give her exact age when defendant first sexually assaulted her,
but said she was "probably . . . like, maybe nine or ten." Thus, the record is
devoid of any prior acts that were perpetrated against S.C. prior to defendant's
fifteenth birthday.
A-3491-18T3
4
The trial court applied the "workable, narrow description of what makes
uncharged acts intrinsic evidence of the charged crime," adopted from United
States v. Green, 617 F.3d 233 (3d Cir. 2010):
First, evidence is intrinsic if it "directly proves" the
charged offense. This gives effect to Rule 404(b)'s
applicability only to evidence of "other crimes, wrongs,
or acts." If uncharged misconduct directly proves the
charged offense, it is not evidence of some "other"
crime. Second, "uncharged acts performed
contemporaneously with the charged crime may be
termed intrinsic if they facilitate the commission of the
charged crime."
[Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 248-
49).]
The trial court concluded that the prior acts did not directly prove the indicted
crimes and were not performed contemporaneously with those cri mes in order
to facilitate them. The record fully supports that determination.
The indictment, amended as proposed,4 avers defendant sexually assaulted
J.C. by having her perform fellatio upon him between March 26, 2005 and
December 5, 2006 when she was under the age of thirteen and by committing
one act of vaginal-penile penetration on her between December 6, 2009 and
4
We were not provided with an amended indictment that reflects charges only
from defendant's fifteenth birthday.
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5
December 5, 2010. As to S.C., the indictment charges in separate counts that
defendant committed an act of vaginal-penile penetration, had her perform
fellatio upon him and committed sexual contact upon her between March 28,
2006 and March 27, 2009 when she was less than thirteen.5 As confirmed during
oral argument, the State's evidence of the dates on which the assaults occurred
are not firmly established by the victims' recollection. The prior acts date back
to December 2001 when J.C. recalled being assaulted when she was eight.
Inasmuch as the State has not limited the evidence of prior acts it seeks to
introduce, it is clear that some of the acts predate the indicted crimes by three to
four years. As such, we agree the evidence was not admissible as intrinsic
because the acts were not contemporaneous ones that facilitated the indicted
crimes; nor do they directly prove those discrete crimes.
We also determine the State's reliance on State v. Santamaria, 236 N.J.
390 (2019), to support the admission of the prior acts as intrinsic evidence to be
misplaced. The State argued to the trial court that, akin to the circumstances in
Santamaria, its proffered evidence explained both the reason J.C. continued to
subject herself to defendant's continued abuse over a long period and defendant's
5
The indictment also charged defendant with three counts of endangering the
welfare of S.C. for each of those sexual acts.
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comfort level in demanding sex from his sister. In Santamaria, intimate
photographic evidence sent to the defendant by the victim after her eighteenth
birthday was admitted to show the admittedly consensual relationship between
the victim and defendant began before she was eighteen, id. at 411, and was thus
illegal. As the trial court here observed, that evidence was admitted to prove
the timing of an admitted relationship. Admission of defendant's alleged prior
acts, however, has a much greater propensity to show the existence of a denied
relationship which at no point was legal. In short, the prior acts are not intrinsic
evidence.
The trial court heeded the Rose Court's adoption of the Green instruction
that if the evidence is not intrinsic, "all else must be analyzed under Rule
404(b)." Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 249). Rule 404(b)
provides, in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
The State contends that the prior acts were relevant to motive, opportunity,
intent, preparation, plan, knowledge, identification, or absence of mistake or
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accident.6 The State makes no argument in its merits brief to support those
contentions; as such we will not address them, Nextel of N.Y., Inc. v. Borough
of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003)
(holding that court will not consider an issue that is based on mere conclusory
statements), except to recognize that none of those purposes for which the
evidence can be admitted under Rule 404(b) is in dispute in this case. Defendant
denies committing the acts; he does not raise any of those factors in his defense
and extrinsic evidence is not required for a jury to determine those issues which
are clear from the manner in which the crimes were allegedly committed. State
v. Beckler, 366 N.J. Super. 16, 28 (App. Div. 2004).
The trial court also considered the State's other proposed purposes for the
admission of the prior acts. The State's principal argument, as set forth in its
merits brief, is
the victims allege that their parents learned of
[defendant's abuse from the time he was eleven years-
old] and failed to notify the authorities. However, the
abuses continued. If these allegations cannot be
presented to the jury, they would have only a limited
understanding of why the [victims] failed to disclose
6
We note the trial court recognized the State's contention was that the evidence
was relevant only to motive, intent, preparation, plan or absence of mistake.
Although we do not normally consider arguments not made before the trial court,
State v. Robinson, 200 N.J. 1, 20 (2009), we need not, in light of our holding,
base preclusion on that ground.
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the[] abuse to anyone else for many years. In addition,
the [victims] felt coerced into performing sexual acts
upon defendant at his request due to years of prior
abuse going unpunished. To exclude this evidence
would be to exclude extremely relevant evidence
explaining why the victims acted the way they did.
In reviewing Cofield's7 four prongs, the trial court afforded the second
prong little weight, finding it had limited applicability. It cited to State v.
Williams, 190 N.J. 114, 131 (2007), and confusingly said "the second prong of
Cofield is only necessar[y] in similar situations," which is not the case here, but
7
In State v. Cofield, the Court articulated a four-part test to determine if
evidence of uncharged acts is admissible at trial:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[127 N.J. 328, 338 (1992) (quoting Abraham P.
Ordover, Balancing The Presumptions Of Guilt And
Innocence: Rules 404(b), 608(b) And 609(a), 38
Emory L.J. 135, 160-61 (1989)).]
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then concluded, "pursuant to Williams . . . the evidence in question is arguably
similar in kind and similar in time." The court seemed to follow the same tack
in holding – without conducting an evidentiary hearing – the State proved the
third Cofield prong because, relying on the victims' statements, "it appears that
the State would be able to make a showing by clear and convincing evidence,
therefore giving the State the benefit of the doubt." It attributed moderate weight
to that prong. While we do not sanction that analysis in determining if the State
met Cofield's prongs – especially because the trial court found the victims'
statements about the timing of their disclosures of abuse were "lacking
somewhat in clarity" – this appeal does not involve a challenge to the trial court's
findings that the State met its burden with regard to those Cofield factors.
"[A]ppeals are taken from orders and judgments and not from opinions, oral
decisions, informal written decisions, or reasons given for the ultimate
conclusion." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Do-Wop
Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)).
We discern the trial court carefully assessed proofs relevant to the first
and fourth prongs as they related to the State's argument that the evidence
explained the reason for the victims' delay in reporting defendant's crimes. The
court's careful review of both victims' statements, the only evidence proffered
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by the State, "reveal[ed] that the vast majority of the alleged disclosures by the
two victims occurred after the defendant turned" fifteen, including J.C.'s
disclosure to her mother following the death of her father in 2011 and S.C's
disclosure to her parents about seeing defendant engaged in a sex act with J.C.
when S.C. was eight.
The trial court found that although the "date information" in the victims'
statements was "not always clear," the "only clear indications of disclosures by
either alleged victim before the defendant turned [fifteen] were first when J.C.
was eight and the defendant about [thirteen when J.C. said] she told her parents
about seeing the defendant and S.C. playing a game together naked. [8] The father
later walked in on the defendant abusing J.C. The parents later yelled at the
defendant." The other disclosure mentioned by the trial court that predated
defendant's fifteenth birthday was not a disclosure by the victim. A former
friend of defendant, Brian Carlton, disclosed to J.C. when she was ten or eleven
that he was no longer friends with defendant, apologized, told J.C. to let him
know if there was anything he could do and hugged her. Thus the record
establishes only one clear disclosure prior to defendant's fifteenth birthday.
8
A review of the transcript reveals J.C. said S.C. told their mother defendant
and J.C. "were playing a game naked."
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The trial court considered that if the disclosures before defendant's
fifteenth birthday were excluded, the State still had "multiple disclosures by the
. . . victims . . . to advance." The court added that the State's argument that the
prior acts evidenced defendant's control over the victims was undercut by
"substantially graphic detailed evidence of multiple sexual encounters with the
two alleged victims" after defendant turned fifteen.
The trial court also concluded the evidence of prior acts had "limited
probative value, especially in light of the other evidence the State possess es to
seek to prove the alleged crimes and to show that the alleged victims disclosed
the events to their parents and numerous others" to no avail. The court
determined the prior act evidence constituted "piling on" and was "highly
prejudicial" to the extent that it outweighed "the relatively meager probative
value of the [prior bad acts] evidence." According "high weight" to factor four
and "low weight" to the first prong, the court found the balance of all four factors
militated against admission of the evidence.
We review evidentiary rulings for an abuse of discretion, State v.
Kuropchak, 221 N.J. 368, 385 (2015), and reverse those rulings that "undermine
confidence in the validity of the conviction or misapply the law . . . ." State v.
Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281, 295 (2012).
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Simply stated, we do "not substitute [our] own judgment for that of the trial
court, unless the trial court's ruling is so wide of the mark that a manifest denial
of justice resulted." J.A.C., 210 N.J. at 295 (quoting State v. Brown, 170 N.J.
138, 147 (2001)). We discern no reason to countermand the trial court's ruling.
The court's findings are well supported. The State admitted to the trial
court that there was "evidence of disclosures to numerous[] or several people"
after defendant turned fifteen, including one disclosure to a friend that resulted
in an investigation by the police and Division of Child Protection and
Permanency personnel to whom J.C. – in the presence of her mother and
defendant – denied any allegations. Those disclosures, like the one prior to
defendant's fifteenth birthday, went unheeded and can be used to buttress the
State's contention that the victims' late disclosure was based on their feeling of
futility. Further, the court's assessment of the evidence relevant to the indicted
crimes and that related to the prior acts is not wide of the mark. The prior act
evidence, alleging acts against J.C. when she was as young as eight, is highly
prejudicial. See State v. Willis, 225 N.J. 85, 102 (2016) (illustrating "the
restraint that must be exercised in the admission of other-crime evidence in
sexual assault cases"); see also State v. J.M., 225 N.J. 146, 161 (2016)
(discussing the prejudicial effect of other-crimes sexual assault evidence on a
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jury). And, like the trial court, we fail to see high probative value of the prior
act evidence. We are unconvinced the facilitation of the acts against J.C. prior
to defendant's fifteenth birthday differed from the facilitation of the acts after
that birthday so as to warrant their admission; again, all acts allegedly committed
against S.C. occurred after defendant was fifteen. Further, we do not see the
prior act evidence is relevant to grooming. According to the State's allegations,
defendant did not groom his victims; he assaulted them.
Our decision addresses only the present status of the case. We leave to
the sound gatekeeping discretion of the trial court the shifting evidential issues
that may arise before and during trial, including changes occasioned by
severance of charges against defendant's and the victims' mother for
endangering the welfare of the children and hindering apprehension.
Additionally, defendant may – through the introduction of evidence or
examination of a witness – open the door to an issue, requiring the trial court to
reevaluate a previous ruling or apply an evidential standard with fresh eyes. See
State v. G.V., 162 N.J. 252, 264-65 (2000) (recognizing some prior crime
evidence does not become admissible until the defendant puts the relevant
purpose of that evidence in issue). We consider this caveat to be especially
appropriate in light of the fact that the trial court did not hold an evidentiary
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hearing and relied only on the victims' statements. The victims' actual
testimony, including that related to the timing of events may impact on
evidential issues; as may any questioning or argument by the defense about
reasons for the victims' late complaints against defendant.
That possibility was touched upon in part by the parties in their
supplemental briefs in which they addressed the scope of evidence relating to
the reasons for late disclosure as impacted by the Supreme Court's limitation of
child-abuse-accommodation-syndrome expert testimony in State v. J.L.G., 234
N.J. 265 (2018). We note that although J.L.G. was decided before the motion
that is the subject of this appeal was argued, we do not see that the issue was
raised before the trial court. We will not address it here. Robinson, 200 N.J. at
20.
Affirmed. We remand the case for proceedings consistent with this
opinion. We do not retain jurisdiction.
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