STATE OF NEW JERSEY VS. R.K.(13-08-0451, SALEM COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3540-14T4
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
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.
I.
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