State of New Jersey v. Vashon M. McPhaul-roberts ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2320-21
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
VASHON M. McPHAUL-
ROBERTS,
Defendant-Respondent.
_________________________
Submitted September 21, 2022 – Decided January 29, 2024
Before Judges Accurso, Vernoia, and Firko.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Warren County,
Indictment No. 20-01-0023.
James L. Pfeiffer, Warren County Prosecutor, attorney
for appellant (Naya Ayana Tsang, Assistant Prosecutor,
on the briefs).
Joseph E. Krakora, Public Defender, attorney for
respondent (Morgan A. Birck, Assistant Deputy Public
Defender, of counsel and on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
By way of leave granted in this sexual assault case involving a child, the
State appeals from a February 24, 2022 order denying its motion to admit fresh
complaint testimony from three witnesses. The State chiefly contends the
motion court abused its discretion in finding the victim, K.N.'s 1, complaints were
too remote in time to constitute fresh complaints. For the reasons that follow,
we affirm in part, reverse in part, and remand.
I.
On October 30, 2018, the Warren County Prosecutor's Office received a
referral regarding child sexual abuse from the Division of Child Protection and
Permanency (Division). On November 1, 2018, K.N., then fifteen years old,
provided a recorded statement to Detective Kevin Graham in the Special Victims
Unit. K.N. informed Detective Graham that she was sexually assaulted by
defendant, Vashon M. McPhaul-Roberts, from June 2011 until June 2013, when
she was between eight and ten years old. K.N. reported that defendant had been
dating her mother and was her younger half-sister's "Brittany's" father. K.N.
described defendant as a type of father figure, who was at their house every day.
1
We use initials and a pseudonym to protect the confidentiality and identity of
the child victim pursuant to N.J.S.A. 2A:82-46(a) and Rule 1:38-3(c)(9).
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2
K.N. told Detective Graham that the incidents of sexual assault took place
at her mother's home. She stated that defendant would come into her bedroom
at night sometimes while she was awake and, at other times if she was asleep,
he would wake her up. K.N. also reported defendant would take down her pants
and underwear and touch her "private areas," and sometimes defendant made
her touch his "private areas." The term "private areas" was clarified by K.N. to
mean defendant's penis and her vagina. K.N. revealed the abuse began shortly
after an incident where defendant was caught by the police running around the
neighborhood naked.
K.N. also reported to Detective Graham that such incidents occurred
around ten times, and more times than not, defendant inserted his fingers into
her vagina after removing her pants and underwear. The victim's mother was
not home when the alleged sexual assaults took place. According to K.N.,
defendant told her, "Don't tell your mom, this is our little secret. Not that she
would believe you anyway."
The abuse stopped when defendant and K.N.'s mother ended their
relationship and he no longer came to their home. K.N.'s mother had custody of
her daughters—both K.N. and Brittany—at the time of the alleged disclosure.
K.N.'s mother was unaware of the sexual abuse until she was interviewed by law
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enforcement. She told law enforcement that she and her children had no contact
with defendant "in at least five years," because he had moved to the State of
Georgia.
During the 2016 to 2017 school year when she was in the eighth grade,
K.N. disclosed the sexual abuse to three friends, M.S., L.H., and J.V., and her
older half-sister, J.N., by another mother. K.N. mentioned M.S. was her best
friend at the time and that she was close with L.H. K.N. told L.H. about the
sexual abuse when the two went out to eat, and K.N. later told the other three
friends together. Law enforcement obtained recorded statements from L.H. and
J.N. M.S.'s and J.V.'s parents did not permit interviews of their children by law
enforcement, and M.S. and J.V. never had any further involvement in this
matter. K.N. never told an adult about defendant's alleged sexual abuse until
she made a disclosure to her high school counselor, A.C., in October 2018.
On November 13, 2018, Detective Graham conducted a recorded
interview with A.C., who confirmed that K.N. disclosed the sexual abuse to her
approximately two weeks earlier on October 30, 2018. A.C. in turn reported
K.N.'s disclosure to the Division. A.C. described K.N.'s demeanor as being very
scared to come forward and fearful of the aftermath of her disclosure. A.C. told
Detective Graham that K.N. was concerned that other individuals would not
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believe her story; her parents would be angry with her; and family relationships
would be ruined, for which she would be blamed.
On November 13, 2018, Detective Graham interviewed L.H. at her high
school. L.H. confirmed that while both she and K.N. were in the eighth grade,
K.N. told her about being sexually abused by Brittany's father, who is defendant.
On November 13, 2018, Detective Graham also interviewed J.N. at her
high school. J.N. stated that K.N. mentioned going to the police about being
sexually assaulted by defendant. The victim may have told J.N. about the sexual
assaults in the past, but J.N. could not recall.
On February 22, 2019, and on January 13, 2020, defendant was charged
in 2020 with committing the following offenses between June 1, 2011, and June
1, 2013, when K.N. was eight to ten years old: 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(b) (count two); and second-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a) (count three).2
2
In its merits brief, the State indicated defendant was released pre-trial on his
own recognizance. Subsequently, defendant violated a condition of his pre-trial
monitoring and was remanded to the Warren County jail where he is presently
detained.
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On October 29, 2020, the State filed a notice of motion to admit fresh
complaint testimony from three individuals—L.H., J.N., and A.C.
On December 15, 2021, a N.J.R.E. 104 fresh complaint hearing was held
to determine whether K.N.'s various reports to L.H., J.N., and A.C. were made
within a reasonable time such that they qualify under the legal standard for
admission as fresh complaint evidence. At the fresh complaint hearing, L.H.,
J.N., and A.C. testified and were cross-examined by defense counsel. No expert
testimony was elicited by either party.
L.H.'s Testimony
L.H. testified that she has known the victim, K.N., since they were eight
or nine years old. L.H. testified she and K.N. had been best friends who talked
to each other about everything, including boyfriends and "stuff" going on at
home. According to L.H., when they were both in the eighth grade during the
2016 to 2017 school year, K.N., then approximately thirteen years old, told L.H.
she had been sexually assaulted. When the disclosure was made, L.H. testified
K.N. appeared upset because she was going to see defendant at an upcoming
family event.
K.N. started to cry and went to the school restroom. L.H. followed her
into the restroom, where K.N. explained to L.H. during a ten-to-fifteen-minute
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conversation that she had been sexually assaulted by defendant and that was the
reason she was anxious about seeing him at the upcoming party. K.N. and L.H.
never discussed the sexual abuse again, and L.H. did not report K.N.'s disclosure
of sexual abuse to anyone. L.H. stated she was young at the time and did not
know how to handle that sort of information.
J.N.'s Testimony
J.N. testified that she is seven months older than her half-sister K.N.
According to J.N., her relationship with K.N. was close when they were younger,
and they grew apart as they got older. J.N. testified that in October 2018, when
K.N. was thirteen or fourteen years old, and either in the ninth or tenth grade,
K.N. had disclosed that she had been touched in a sexual manner by defendant
when she was eight or nine years old. The disclosure took place during the
school year while J.N. and K.N. were at school. K.N. told J.N. that she was
scared to tell anyone about the sexual abuse because of her mother's relationship
with defendant, and because they had a child together, Brittany. K.N. told J.N.
she did not want to hurt K.N.'s mother or put Brittany in a compromising
position, or hurt anyone else. J.N. related that K.N. felt multiple individuals
would get hurt if she disclosed defendant's sexual abuse.
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A.C.'s Testimony
A.C. testified that she first met with K.N. while K.N. was a high school
freshman as part of an unrelated investigation regarding harassment,
intimidation, and bullying. During one of their meetings, K.N., then fifteen
years old, questioned A.C. about her duty to report "abuse" of a sexual nature,
what information would remain confidential, and what A.C. was required to
report to authorities. In October 2018, on the second or third occasion the two
met, K.N. disclosed to A.C. that when she was younger—at age nine or ten—
she was "inappropriately touched" by her "stepdad," referring to defendant.
A.C. did not ask K.N. any follow-up questions, other than to confirm she was
not in "any imminent danger," because A.C. contended it was not her job to
obtain a disclosure. A.C. immediately reported K.N.'s disclosure to the Division
because A.C. felt she had enough information to report.
The State's Argument
The State contended K.N.'s disclosures to all three individuals are
admissible under the fresh complaint doctrine. Generally, hearsay is an out-of-
court statement admitted "to prove the truth of the matter asserted," N.J.R.E.
801(c), and, subject to limited exceptions, is inadmissible. N.J.R.E. 802.
Ordinarily, a third party's testimony about a victim's out-of-court description of
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an alleged sexual assault is inadmissible hearsay evidence. Ibid. However,
under the fresh complaint doctrine, the State can present "evidence of a victim's
complaint of sexual abuse, [which is] 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). Still, "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." Id. at 456 (citing State v. Bethune, 121 N.J. 137, 147-
48 (1990)).
"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 (citing State v. W.B., 205 N.J. 588, 616 (2011)). In
determining whether a compliant was made within a reasonable time after the
act(s) occurred, the lapse of time between the incident(s) and the reporting does
not bar the statement if explainable by the victim's youth and the attendant
circumstances, such as "being cajoled and coerced into remaining silent by their
abusers." Bethune, 121 N.J. at 143. In other words, the reasonable time
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component of the fresh complaint doctrine must be applied flexibly "in light of
the reluctance of children to report a sexual assault and their limited
understanding of what was done to them." W.B., 205 N.J. at 618 (quoting State
v. P.H., 178 N.J. 378, 383 (2004)).
Furthermore, courts have frequently acknowledged that children may be
too embarrassed and scared to discuss sexual abuse, making it necessary to be
flexible in the application of the fresh complaint doctrine for child victims of
sex crimes. Bethune, 121 N.J. at 144. "A substantial lapse of time between the
assault and the complaint may be permissible if satisfactorily explainable by the
age of the victim and the circumstances surrounding the making of the
complaint." State v. Pillar, 359 N.J. Super. 249, 281-82 (App. Div. 2003). The
length of the delay in making a disclosure does not impact the admissibility of
the statement, but rather, the weight to be ascribed to the evidence. State v.
Bethune, 232 N.J. Super. 532, 536 (App. Div. 1989).
Relevant here, the State argued K.N.'s disclosure was made to natural
confidantes, such as L.H., J.N., and A.C., citing State v. Balles, 47 N.J. 331,
338-39 (1966). The State also argued the statements must be self-motivated and
not be part of an interrogation, and that K.N.'s statements to these three
individuals satisfies those requirements. The State also asserted K.N.'s delay in
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disclosing defendant's alleged sexual abuse is understandable because he stood
in a position of authority over her not only as an adult figure, but also as
Brittany's father and her mother's boyfriend. Pillar, 359 N.J. Super. at 281-282.
In addition, the State noted that defendant specifically told K.N. when she was
eight or nine not to tell anyone about what happened and that no one would
believe her.
In its N.J.R.E. 104 closing argument before the motion court, the State
relied on our Court's decision in W.B., 205 N.J. at 597, 616, where a sixteen-
year-old victim disclosed to her boyfriend that she had been sexually assaulted
by her stepfather when she was fourteen years old, approximately a year and a
half after the last alleged assault. The Court affirmed our decision upholding
the trial court's determination that the disclosure was made "within a reasonable
time." Id. at 619. The interval of time was deemed reasonable in the Court's
view based on the victim's "open rebellion" against defendant and her mother
because they did not want her dating her boyfriend. Id. at 618. The State here
argued the fact pattern was relevant to the matter under review.
The State also relied on State v. Hummel, where we affirmed the trial
court's decision to admit fresh complaint testimony where the victims were
foster children who alleged they were sexually abused by their foster father. 132
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N.J. Super. 412, 423 (App. Div. 1975). In that case, we noted it was reasonable
for the victims not to disclose the abuse while they lived with defendant because
he had threatened them with being put away in a shelter if they spoke. Ibid. We
also noted that a delay of four to six weeks after being moved to a children's
shelter was not unreasonable, as "a [fifteen]-year-old girl, abused and threatened
for some three years, would reasonably require several weeks to overcome her
residual fears." Ibid. In addition, the State argued that in State v. L.P., fresh
complaint evidence was admitted of an alleged sexual assault involving a child
victim even though the statements were made almost a year after the date of the
alleged assault. 352 N.J. Super. 369, 374 (App. Div. 2002).
In addition, the State argued that in State v. Pillar, we determined a
statement under the fresh complaint doctrine was admissible even though the
dates of the abuse were unclear when the last act of sexual abuse apparently
occurred close in time to the date of the disclosure. 359 N.J. Super. at 284-85.
We also held, in Pillar, however that a statement made by a second victim six
years after the sexual abuse allegedly took place was not admissible under the
fresh complaint doctrine because it was too remote and was not spontaneous.
Ibid.A-2320-21
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Defendant's Argument
Defendant argues the specific dates and acts of sexual abuse involving
K.N. have not been specified and still remain unknown. Defendant maintained
the three putative fresh complaint witnesses, L.H., J.N. and A.C., were not
informed of K.N.'s allegations of sexual abuse near the time of the alleged
incidents, and their proffered testimony cannot be considered "fresh."
Defendant contended the disclosures "are alleged to have been made [seven
years] after the incident" even though he had been out of L.N. and her mother's
home for five years.
In defendant's view, the three proposed statements made by K.N. to the
three testifying witnesses—L.H., J.N., and A.C.—about defendant's alleged
sexual assaults against her did not satisfy the criteria to admit the fresh
complaint testimony. Defendant argued the first "hearsay statement" to L.H.
was made a minimum of three years and three months after the alleged abuse
ended, and the two "later" hearsay statements to J.N. and A.C. were made a
"minimum of five years" after the alleged abuse ended. Defendant contends
these time frames "fall outside the bounds of what our courts have held to be a
reasonable delay." Following summations, the motion court reserved decision.
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The Court's Decision
On February 24, 2022, in a written opinion, the motion court denied the
State's motion to admit the fresh complaint evidence of all three witnesses—
L.H., J.N., and A.C. The motion court found that K.N.'s disclosures to L.H.,
J.N., and A.C., who it determined were natural confidantes of the victim, were
nonetheless inadmissible because the statements "were not clearly made within
a reasonable time" after the alleged sexual assault under the fresh complaint
doctrine. The motion court rejected defendant's argument that children cannot
be natural confidantes of a victim. However, the motion court noted that no
specifics as to K.N.'s allegations were provided, and the three witnesses were
not told of the allegations of abuse near the time of the alleged incident s. The
motion court found the disclosures were made seven years after the alleged
incidents despite defendant having been out of K.N.'s home for five years prior
thereto.
The motion court noted L.H. and J.N. testified about the time they spent
with K.N. growing up and their mutual support for one another, and A.C. had
built a relationship with K.N. through interactions as her school counselor.
However, the motion court found the victim's disclosures to these three
individuals were inadmissible fresh complaint evidence. The motion court
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entered a memorializing order denying the State's motion for leave to admit
evidence of K.N.'s reports as fresh complaint evidence and granted the State's
motion to stay the order pending an appeal. We granted the State's motion for
leave to appeal from the motion's court's order.
II.
We review a trial court's evidentiary decision under a deferential standard.
State v. Medina, 242 N.J. 297, 412 (2020). A trial court's decision "should be
upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear
error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)). A trial court's application of "the proper
legal standing in evaluating the admissibility of evidence," however, is reviewed
de novo. State v. Trinidad, 241 N.J. 425, 448 (2020).
III.
In its opinion, the motion court explained the relaxed reporting
requirements for child victims of sexual assault, in addition to the "aura of
intimidation" factor that allows for a lengthier lapse of time to be considered
"reasonable." W.B., 205 N.J. at 618-19 (citing L.P., 352 N.J. Super. at 384).
However, the motion court then pointed out a time discrepancy between the last
alleged date of assault in 2013 and defense counsel's representation that
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defendant moved out of the victim's home in 2012 to Georgia that same year.
The State contested defendant's purported move to Georgia on the basis that no
evidence was presented on this issue other than K.N.'s mother's statement to the
Division.
The motion court found that the disclosures were not made within a
reasonable time, because "the New Jersey [c]ourts have never found a five -year
gap to be reasonable, absent the presence of an aura of intimidation." The
motion court reasoned that the victim had been removed from any aura of
intimidation, since defendant allegedly moved out of the victim's home in 2012,
despite a lack of testimony or evidence supporting that purported fact.
A. L.H.
K.N.'s initial disclosure to L.H. was allegedly triggered by anxiety
associated with having to see defendant at an upcoming family gathering. We
conclude the motion court abused its discretion and erred in determining the
victim's disclosure to L.H. was not made within a reasonable time. The motion
court abused its discretion by not considering K.N.'s very young age—eight to
ten years old—when the alleged sexual assaults by defendant occurred.
Moreover, the motion court ignored defendant's statements to K.N. about
keeping his conduct a secret; and K.N.'s statements that she did not report the
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assaults sooner because she was concerned about the effect the disclosures
would have on her family because defendant is Brittany's father. Given these
circumstances, which were not taken into account by the motion court, it is not
unreasonable for eight-to-ten-year-old K.N. to wait until she was more mature
and older—at the still tender age of thirteen—to first disclose she had been
sexually assaulted.
Seminal cases related to the fresh complaint doctrine highlight granting
deference to children through a more flexible reporting requirement, and many
cases have found one to three years between the sexual assault and disclosure to
be reasonable. In W.B., the victim was attacked by her stepfather at age
fourteen, and she later disclosed the incident at age sixteen. W.B., 205 N.J. at
618. Our Supreme Court concluded that the timespan was reasonable for
purposes of admitting fresh complaint testimony. Id. at 619.
The Court reasoned the victim's age at the time of the disclosure; her
residing with the defendant at least part of the time in between the assault and
the disclosure; and her fear of reporting the abuse were all contributing factors
that impacted the determination of reasonableness. Id. 618-19; see also State v.
R.E.B., 385 N.J. Super. 72, 88-90 (App. Div. 2006) (concluding that the victim's
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disclosure regarding repeated sexual assault incidents by her own father after
two years was reasonable).
Just as in W.B., the victim in this case, K.N., was allegedly sexually
assaulted by defendant, who was a father figure in the household, and she
experienced repeated sexual assaults at a very young age, ostensibly over a two -
year period. And, similar to W.B., the victim disclosed the incident during her
teenage years, and mentioned her fears about coming forward.
We also find that the motion court's reliance on defense counsel's
representation defendant relocated to Georgia in 2012 to determine, at least in
part, the reasonableness of the length of time between the alleged sexual assaults
and K.N.'s disclosure, was improper. As the State points out, there is no
competent evidence in the record supporting defense counsel's representation
about defendant relocating out of state. Moreover, the motion court did not
consider the fact that the grand jury heard testimony from Detective Graham and
had statements from K.N. and the three witnesses—L.H., J.N., and A.C.—for its
consideration during deliberations, which ultimately led to a finding of probable
cause that defendant committed the alleged sexual assaults through June 2013,
and thus long after defendant purportedly relocated to Georgia according to
counsel's unsupported contention. K.N.'s disclosure to L.H. occurred
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approximately three years after the last alleged sexual assault. We therefore
conclude the motion court's reasoning and conclusion, which are based solely
on defense counsel's argument and in the absence of expert testimony on this
issue, to constitute reversible error.
Given these compelling circumstances, we reverse the motion court's
order barring L.H.'s testimony about K.N.'s disclosures at age thirteen. We
conclude L.H.'s testimony qualifies as fresh complaint evidence and will be
admissible at the time of trial.
B. J.N. and A.C.
We now turn to the proffered fresh complaint testimony of J.N. and A.C.
The State reiterates its argument on appeal that the existence of an "aura of
intimidation" is a crucial factor to be considered in the analysis regarding
reasonable timeliness of a child victim's disclosure. 3 In L.P., the victim testified
she was sexually assaulted by her adoptive father on multiple occasions, from
ages nine to twelve, and that her adoptive father had threatened to kill her if she
3
Ramona Alaggia, Delphine Collin-Vézina, and Rusan Lateef (2017).
Facilitators and Barriers to Child Sexual Abuse (CSA) Disclosures: A Research
Update (2000-2016). 20(2) Trauma Violence Abuse 260, 277 (2019) ("Families
with rigidly fixed gender roles, patriarchal attitudes, power imbalances, other
forms of child abuse and domestic violence, chaotic family structure,
dysfunctional communication, and social isolation have been found to suppress
disclosure".).
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told anyone. 352 N.J. Super. at 369. The victim did not tell anyone about the
sexual assault until a year later, after she was placed in foster care. Ibid. We
determined that the victim's disclosures were made within a reasonable time,
given the verbal threats made by the defendant, as well as his physical abuse.
Ibid.; see Hummel, 132 N.J. Super. at 423 (holding fresh complaint statements
made three years after the sexual abuse were reasonable, due to the defendant's
control over the victims who threatened them if they spoke up).
In Pillar, the child victims, P.T. and S.A.T., were sexually assaulted over
a five-year period by an individual who either lived or frequently visited the
home while living in another state. 359 N.J. at 258. When the defendant was
not in this State, he maintained contact with one of the victims, P.T., and made
a verbal threat during their last known encounter. Ibid. We concluded that P.T.'s
statement fell within the fresh complaint doctrine, even though the exact dates
of abuse were unclear. Id. at 284-285. We reasoned that the statement was
reasonably contemporaneous, considering the victim's age and the entire set of
circumstances. Ibid. However, we reached a contrary conclusion regarding a
statement made by S.A.T. six years after the alleged sexual abuse, not only due
to the late timing of the disclosure, but because the relationship and spontaneity
requirements were not met. Ibid.
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Given that K.N. made her disclosures to L.H. in 2016, the record lacks
any evidence supporting a finding her disclosures two years later to J.N. and
A.C. were made within a reasonable time of the alleged sexual assaults. See
L.P., 352 N.J. Super. at 382. Moreover, the facts here demonstrate K.N.'s
disclosures to J.N. and A.C. occurred more than five years after the alleged
abuse ended in 2013. The motion court did not abuse its discretion by finding
K.N.'s complaints to J.N. and A.C. were too remote in time to constitute fresh
complaints.
In sum, we (1) reverse the motion court's order barring L.H. from
testifying at the time of trial and (2) affirm the motion court's order barring J.N.
and A.C. from testifying at trial.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with our opinion. The stay order is vacated. We do not retain
jurisdiction.
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