STATE OF NEW JERSEY VS. R.J.M. (11-08-0763, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0359-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.J.M.,
Defendant-Appellant.
______________________________
Argued June 5, 2018 - Decided July 31, 2018
Before Judges Fisher, Sumners, and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 11-08-0763.
Daniel S. Rockoff, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Daniel S. Rockoff, of counsel and on the
briefs).
Douglas B. Pagenkopf, Assistant Prosecutor,
argued the cause for respondent (Charles A.
Fiore, Gloucester County Prosecutor,
attorney; Douglas B. Pagenkopf, on the brief).
PER CURIAM
An indictment charged defendant R.J.M. with three offenses:
(1) 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 endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (count three). A jury acquitted defendant on count two
but was unable to reach a verdict on counts one and three. The
State retried defendant and a second jury convicted him on those
counts. The trial court sentenced defendant to a sixteen-year
prison term for count one, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, and a four-year concurrent prison term for
count three. Defendant was also sentenced to five years mandatory
parole supervision and parole supervision for life. Defendant
appeals his conviction, sentence, and various pre-trial and trial
rulings. He argues:
POINT I
BECAUSE A POLICE INTERROGATOR IGNORED
[DEFENDANT]'S UNAMBIGUOUS REQUEST FOR
COUNSEL, THIS COURT MUST REVERSE THE DENIAL
OF THE MOTION TO SUPPRESS [DEFENDANT]'S
STATEMENT. U.S. Const., AMENDS. V, XIV.
POINT II
THIS COURT MUST ALSO REVERSE THE DENIAL OF
THE MOTION TO SUPPRESS [DEFENDANT]'S STATEMENT
FOR REASONS RELATED TO INTERROGATORS'
CONFRONTATION OF [DEFENDANT] WITH A POLYGRAPH.
U.S. Const., AMENDS. V, XIV.
2 A-0359-15T3
A. [Defendant] did not
intelligently waive his right to
silence before he took the
polygraph.
B. Interrogators coerced unreliable
responses from [Defendant] only by
confronting him with a fabrication
of scientifically-certain proof of
guilt, whereupon [Defendant] tried
to reconcile his own inconsistent
memory with that pseudoscientific
fabrication.
C. The trial court's so-called
"cure" - admitting [Defendant]'s
statement while hiding from the jury
how interrogators used a polygraph
to elicit the statement - was
totally inadequate, as it left
[Defendant] with an unacceptably
prejudicial dilemma.
POINT III
THE COURT ERRED BY DENYING [DEFENDANT]'S
REQUEST FOR A SECOND-DEGREE N.J.S.A. 2C:14-2B
CHARGE AS A LESSER ALTERNATIVE TO THE FIRST-
DEGREE N.J.S.A. 2C:14-2A(l) CHARGE. U.S.
Const., AMENDS. V, XIV; N.J. Const., ART. I,
¶¶ 1, 9, 10.
POINT IV
THE CUMULATIVE PREJUDICE OF REPETITIOUS OUT-
OF-COURT HEARSAY ADMITTED PURSUANT TO
N.J.R.E. 803(C)(27) AND N.J.R.E. 803(C)(4)
OVER THE DEFENDANT'S OBJECTIONS DENIED
DEFENDANT A FAIR TRIAL. U.S. Const., AMENDS.
V, XIV; N.J. Const., ART. I, ¶¶ 1, 9, 10.
POINT V
AFTER THE FIRST JURY'S VERDICT, THE DOCTRINE
OF COLLATERAL ESTOPPEL, ALSO KNOWN AS ISSUE
PRECLUSION, BARRED THE STATE FROM RE-ARGUING
3 A-0359-15T3
AT THE SECOND TRIAL THAT [DEFENDANT] ACTED
PURPOSELY. THE STATE'S UNFAIR REPETITION OF
THIS CLAIM, WHICH THE STATE HAD ALREADY
LITIGATED AND LOST AGAINST [DEFENDANT] AT THE
FIRST TRIAL, UNFAIRLY DILUTED [DEFENDANT]'S
DEFENSE THAT ANY IMPROPER CONTACT HAD BEEN AN
ACCIDENT. U.S. CONST., AMENDS. V, XIV; N.J.
Const., ART. I, ¶¶ 1, 9, 10.
POINT VI
THIS MATTER SHOULD BE REMANDED FOR
RESENTENCING, BECAUSE THE COURT FOUND
IMPROPER AGGRAVATING FACTORS, AND FAILED TO
FIND RELEVANT MITIGATING FACTORS.
After a thorough review of the record, we conclude that
defendant did not invoke his right to counsel and, thus, his
subsequent inculpatory statements were appropriately admitted by
the trial court. We also disagree with defendant's claims that
he did not intelligently and voluntarily waive his Miranda1 rights
and we find no error in the trial court's redaction of the recorded
interrogation. We conclude, however, that the trial court erred
in refusing to charge the jury on the lesser-included offense of
second-degree sexual assault. We find no error with the trial
court's evidentiary rulings with certain exceptions to be
addressed on remand, and no merit to the State's collateral
estoppel argument. Accordingly, we affirm in part, reverse in
part and remand.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-0359-15T3
I.
Defendant's wife ran a daycare center out of her home that
J.C., the victim, began attending when he was a one-year-old child.
Approximately three years later, defendant took a disability leave
from his job and was at home more frequently during the day.
Defendant's wife claimed that despite his increased presence in
the home, defendant had no involvement with the daycare center's
business but acknowledged that he interacted with J.C.
occasionally such as tickling him and blowing "raspberries" on his
stomach.
When J.C. was four, he told his father that "[defendant] bit
my peepee and it hurt," a statement he repeated to his mother.
The next day, J.C.'s parents took him to the police station where
a detective conducted a recorded interview. Although J.C. did not
repeat the allegations to the detective, when the detective left
the room J.C. repeated the statement to his mother while the camera
was still active. J.C. also repeated the allegation to a child
abuse pediatrician who performed a physical examination. At both
the first and second trials, J.C. testified that defendant touched
him with his hands, not his mouth.
When defendant was questioned at the police station the next
day, he was read his Miranda rights and repeatedly proclaimed his
innocence during the five-hour interrogation. During the first
5 A-0359-15T3
portion of his interrogation, the detectives asked defendant about
taking a polygraph exam and he indicated that although "nervous"
he "should do well" on it. After agreeing to the polygraph exam,
defendant spoke to a different interrogator from the State Police
polygraph unit. According to the trial court, after it reviewed
the videotaped interrogation, this discussion occurred as the
detective set up the polygraph equipment:
Detective: Okay . . . I can't just hook you
up and start asking you questions, I have to
do an interview beforehand, I have to get
basic information that you've probably already
given to the detectives, and I apologize if
it's redundant . . . [B]ut before we start
doing that, I have to . . . read you your
Miranda rights, I know they already [did] it
to you?
Defendant: Mmm-mmm.
Detective: Okay, I have to do that again, just
because my department requires it, and it's
also a polygraph consent form. You know
polygraph is voluntary?
Defendant: Mmm-mmm.
Detective: Okay, nobody can force you to take
it.
Defendant: Right.
Detective: Okay, so I'm gonna read this to you
and get this out of the way and then we'll go
from there, because I have to ask you
questions. . . .
Defendant: My one, one of my main concerns,
I, I'm wondering, I want to take [the
6 A-0359-15T3
polygraph exam] because, I, I, know I didn't
do anything. . . .
Detective: Uh-huh.
Defendant: But, I mean, I don't know if I have
to have a lawyer?
Detective: You wanna what?
Defendant: A lawyer.
Detective: That's up to you, I can't, I can't
give you any kind of advice regarding that, I
mean if you didn't do anything, if you did
nothing wrong, um, you take the polygraph
test, you clear your name from this case, and
you move on.
Defendant: Okay.
Detective: If you think you need a lawyer, if
you decide you want a lawyer, then. . . .
Defendant: What is that, I don't think I need
a lawyer . . . but . . . I mean. . . .
Detective: If you think you need a lawyer . .
. if you . . .
Defendant: I feel, I, I don't want to okay to
something that. . . .
Detective: If you want a lawyer, then that's
something that you'll have to tell me and then
I'm not allowed to talk to you.
Defendant: Well I'll take it, I, I have no
reason to uh, I mean, I have nothing to uh,
hide.
Defendant was read his Miranda rights again and signed a
polygraph consent form. After the exam was completed, the
detective advised defendant that he failed the test. Upon hearing
7 A-0359-15T3
the results, defendant made incriminating comments that his mouth
might have unintentionally touched J.C.'s penis when he was
tickling and wrestling and rolling around with him. Defendant
agreed to write an apology letter to J.C. and stated he was "very
sorry" and that he "never meant for that [oral contact] to happen."
After completing the letter, defendant was arrested.
In his first point, defendant argues that he made an
unequivocal request for counsel that the trial court erroneously
characterized as ambiguous. We disagree and conclude that rather
than invoking counsel, defendant merely sought advice from the
detective.
An accused must be advised of his right to remain silent and
to have a lawyer present, and if that right is asserted, it must
be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104
(1975). An accused that has expressed his desire to deal only
with police through counsel may not be further interrogated until
such counsel is present, "unless the accused himself initiates
further communication, exchanges, or conversations with the
police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). In New
Jersey, "an equivocal request for an attorney is to be interpreted
in a light most favorable to the defendant." State v. Chew, 150
N.J. 30, 63 (1997), overruled on other grounds, State v. Boretsky,
186 N.J. 271 (2006).
8 A-0359-15T3
When an accused makes an ambiguous statement that may be
construed as an assertion of his Miranda rights, the police are
permitted to ask follow up questions "designed to clarify the
meaning of those words." State v. Alston, 204 N.J. 614, 623
(2011). Put another way, if "'following an equivocal indication
of the desire to remain silent,' the police are reasonably unsure
whether the suspect was asserting that right, they 'may ask
questions designed to clarify whether the suspect intended to
invoke his right to remain silent.'" State v. Johnson, 120 N.J.
263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836,
841-42 (11th Cir. 1987)).
Under Miranda, such questioning aimed at clarification is
"not considered 'interrogation' . . . because it is not intended
to 'elicit an incriminating response from the suspect.'" Johnson,
120 N.J. at 283 (quoting Christopher, 824 F.2d at 842 n.16). "The
rule permits only clarification, not questions that 'operate to,
delay, confuse, or burden the suspect in his assertion of his
rights. Because such questions serve to keep the suspect talking,
not to uphold his right to remain silent, they constitute unlawful
"interrogation," not permissible clarification.'" Id. at 283-84
(quoting Christopher, 824 F.2d at 842).
Defendant's claim that he unambiguously requested an attorney
is belied by a review of the relevant exchange in its entirety,
9 A-0359-15T3
as opposed to a truncated version in which words and phrases are
improperly parsed. Only if we view the colloquy — "you wanna
what?",2 "a lawyer" — in complete isolation, and by consciously
2
We reviewed the same unredacted videotape considered by the
trial court. After our review, we have concluded that the relevant
colloquy between defendant and the detective represented in the
transcript submitted by the parties on appeal is incorrect. The
accurate colloquy reads:
Defendant: But, I mean, I don't know if I have
to have a lawyer?
Detective: You don't know what?
Defendant: A lawyer.
We acknowledge that the factual findings of a trial court in
support of the grant or denial of a motion to suppress "must be
upheld when 'those findings are supported by sufficient credible
evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017)
(quoting State v. Gamble, 218 N.J. 412, 424 (2014)). In S.S., the
Court "cautioned that a trial court's factual findings should not
be overturned merely because an appellate court disagrees with the
inferences drawn and the evidence accepted by the trial court or
because it would have reached a different conclusion." Ibid.Rather, absent findings that are "so clearly mistaken that the
interests of justice demand intervention and correction," we
should not disturb the factual findings of a trial court. Ibid.(quoting Gamble, 218 N.J. at 425).
Our independent review of the videotape does not alter our
determination that defendant's statement was not an invocation of
counsel, ambiguous or otherwise. In other words, whether the
exchange included the phrase "you wanna what?" as reflected in the
transcript or "you don't know what," defendant was not invoking
his right to counsel but was clearly asking for advice. Thus, the
trial court's incorrect factual finding on this point was not "so
clearly mistaken that the interest of justice demand intervention
and correction," Ibid. (quoting Gamble, 218 N.J. at 425), because
it nevertheless correctly characterized defendant as asking the
interrogating officer for "advice on whether he needed an
attorney."
10 A-0359-15T3
ignoring the previous statement, could one conclude the request
for counsel was unambiguous. His initial statement — "But, I
mean, I don't know if I have to have a lawyer?" — is presented as
a question and evidences an attempt to seek advice from the
detective on the necessity of counsel. The follow-up question and
answer was connected to defendant's request for legal advice.
The relevant colloquy is similar to the permissible
interrogation in Messino and Alston. In Messino, 378 N.J. Super.
at 573, during a cigarette break, the defendant asked, "Do you
think I need a lawyer?" The police officer advised defendant
"that it was his responsibility to tell defendant that he had a
right to have a lawyer, but 'that was his call.'" Not
surprisingly, we found that defendant "merely asked" the
interrogator if he needed a lawyer and that "[this] inquiry . . .
may be distinguished from other statements considered to be
requests for counsel." Id. at 578. We held the statement was not
a request for counsel, ambiguous or otherwise, but was a mere
request for advice.
In Alston, 204 N.J. at 618, the Court concluded defendant's
statements, "Should I not have a lawyer in here with me?" and "No,
I am asking you guys, man. I don't - I'm just - I see you guys,
man," were not unambiguous requests for counsel. The Alston Court
also concluded that the officer's immediate response — "That's on
11 A-0359-15T3
- that's on you. If you want a lawyer, then we - stop and you
going to get your lawyer. . . . If you want to stop at this time
then we stop at this time." — was both a "fair recitation" of
defendant's Miranda rights and "permissible clarification." Id.
at 617-618, 628.
Again, defendant's statement — "But, I mean, I don't know if
I have to have a lawyer?" — was posed as a mere question to the
detective in an attempt to seek advice. While we recognize that
an ambiguous request for counsel is "to be interpreted in a light
most favorable to the defendant," Chew, 150 N.J. at 63, when we
read the colloquy as a whole we cannot escape the conclusion that
defendant's statement was not an invocation of counsel, ambiguous
or otherwise. Further, the detective's immediate response —
"That's up to you, I can't, I can't give you any kind of advice
regarding that. . . ." — was an appropriate effort to explain to
defendant that the detective could not advise whether counsel was
necessary.
To the extent that defendant's statements may be viewed as
an ambiguous invocation of his right to counsel, we agree with the
trial court that the detective appropriately clarified defendant's
request and did not impermissibly "delay, confuse, or burden" him.
Johnson, 120 N.J. at 283. Without delay, the detective promptly
advised defendant that she could not give him advice and indicated
12 A-0359-15T3
that, if he was requesting a lawyer, he had to tell her. Simply,
the lack of burden placed upon defendant is highlighted by the
detective's sharp response that he had to tell her if he wanted
to invoke his rights and obtain counsel. Further, the entire
reason the detective was in the room with defendant was because
he had voluntarily agreed to take the polygraph exam. Therefore,
we conclude that during the relevant colloquy the detective did
not implant or force the idea of the exam onto defendant. Rather,
he had already expressed a willingness to take the exam and thus
under these circumstances the detective's comments did not try to
"delay, burden or confuse" his right to counsel.3
II.
Defendant argues in Point II that (1) he did not voluntarily
waive his right to take the polygraph, (2) the detectives coerced
unreliable responses, and (3) the trial court's redaction of
references to the polygraph in the recorded interrogation shown
to the jury was in error. We disagree.
3
We also observe that the detective's statement, "If you want a
lawyer, then that's something that you'll have to tell me and then
I'm not allowed to talk to you" is not a precise characterization
of the Miranda warnings. But, in light of defendant having been
previously Mirandized and clearly understanding and waiving his
rights, we conclude this comment did not in any way confuse him.
In this regard, we are mindful that "interrogating officers, when
engaged in communications with suspects, most often use language
that is also more like that of the suspect than the precise and
pristine elocutions of the . . . Oxford don." Alston, 204 N.J.
at 627.
13 A-0359-15T3
A valid waiver requires the State to show beyond a reasonable
doubt that the accused's waiver was "voluntary, knowing, and
intelligent." State v. Hubbard, 222 N.J. 249, 265-67 (2015)
(quoting State v. Hreha, 217 N.J. 368, 382 (2014)). An involuntary
confession may result from physical or psychological coercion;
however, "use of psychologically oriented interrogation techniques
is not inherently coercive." State v. Cook, 179 N.J. 533, 562
(2004). Whether the State has shown beyond a reasonable doubt
that a waiver was voluntary should be determined by assessing the
"totality of the circumstances" which "includ[es] both the
characteristics of the defendant and the nature of the
interrogation." State v. Galloway, 133 N.J. 631, 654 (1993).
Further, relevant factors in making this determination include
"the suspect's age, education and intelligence, advice concerning
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature, and whether
physical punishment and mental exhaustion were involved." Ibid.Courts should also consider "defendant's previous encounters with
law enforcement" and the period of time that has elapsed between
the administration of Miranda rights and the defendant's
confession. Hreha, 217 N.J. at 383.
First, defendant argues that he did not intelligently waive
his right to silence prior to the polygraph exam. His contention
14 A-0359-15T3
is based upon his conversation with the detective as she was
setting up the polygraph exam and after he waived his Miranda
rights where he asked, "If I don't take this test . . . what is
my next step, am I just automatically guilty?" The interrogator
responded "I don't know," and offered to get the detective working
on the case to come talk to defendant. Defendant declined but
continued asking what other options he had if he walked out of the
interrogation room, leading the interrogator to state that, if he
left the room, his name would not be cleared and that it would
make J.C.'s story "more believable." Defendant then decided to
take the polygraph.
Defendant relies on State v. Pillar, 359 N.J. Super. 249, 268
(App. Div. 2003), where we held that the defendant's Miranda waiver
was not valid because the officer's "acquiescence to hear an 'off-
the-record' statement" from the defendant, which the officer knows
cannot be "off-the-record," "totally undermines and eviscerates
the Miranda warnings." But, here, the detective responded to
defendant's inquiry that she did not know if he would be
automatically guilty because she was not the detective working on
the case. Thus, the detective did not make any affirmative
assertions that defendant would be guilty if he did not take the
polygraph exam and did not attempt to undermine defendant's Miranda
15 A-0359-15T3
warnings. Also, defendant understood that he did not have to take
the test when he stated "I want to know what options I have if
. . . I was to just walk out of here."
Second, defendant contends that the detective coerced
unreliable responses from him by "confronting him with a
fabrication[] [of] scientifically-certain proof of guilt." Our
Supreme Court has recognized the questionable reliability and
accuracy of polygraph tests. See State v. A.O., 198 N.J. 69, 83-
84 (2009); see also State v. Domicz, 188 N.J. 285, 313 (2006)
(recognizing that "serious questions about the reliability of
polygraph evidence remain"). Here, defendant takes issue with the
detective's statements that polygraphs are a "scientific
instrument" that is "97% accurate" and that his nervousness would
not impact the test.
We disagree with defendant's attempt to compare the present
matter to cases where the police fabricated tangible evidence to
elicit a confession. See State v. Chirokovskcic, 373 N.J. Super.
125, 129, 133-34 (App. Div. 2004) (upholding suppression of
confession on the basis of coercion because the police fabricated
a laboratory report to fictitiously indicate the defendant's DNA
was found at the crime scene); State v. Patton, 362 N.J. Super.
16, 18, 49 (App. Div. 2003) (holding the defendant was coerced
when the police fabricated an audio tape depicting a fake eye-
16 A-0359-15T3
witness to the crime). The detective here did not fabricate the
results of the polygraph test. Defendant simply failed the test
and the results were used to show that he was not being truthful
in the interrogation. See State v. R.T., 411 N.J. Super. 35, 45-
46 (App. Div. 2009) (finding that "the specific use of the voice
stress analyzer to point out to defendant that it appeared he was
not being entirely candid in his denial of the allegations, does
not rise to the level of trickery by resorting to fabricated
evidence of the type that we disapproved in [Patton, 362 N.J.
Super. at 31-49]").4
4
A survey of the case law outside of New Jersey supports the
actions of the police here. See Mastin v. Senkowski, 297 F. Supp.
2d 558, 603-04 (W.D.N.Y. 2003)(finding an officer's
misrepresentation that the polygraph machine was "95 percent
accurate" did not make the defendant's confession involuntary
because the law allows police to make false statements, the
defendant failed to establish the officer lied about the polygraph
results); People v. Mays, 174 Cal. App. 4th 156, 166 (Cal. Ct.
App. 2009)(disregarding defendant's belief that "polygraphs are
100 percent accurate" because "the belief was not induced by the
police"); Contee v. United States, 667 A.2d 103, 104 (D.C.
1995)(stating that, when using tests such as polygraphs, the
police's failure to "explain[] that the test results are not
conclusive" does not mean the confession is involuntary unless the
defendant shows the deception was "unfair to the extent that his
due process was denied"); State v. Stone, 303 P.3d 636, 645 (Idaho
Ct. App. 2013)(determining the detective's statement, after
defendant took the exam, that "polygraph examinations were one-
hundred percent accurate" did not make the defendant's statements
involuntary because the detective did not make legal
misrepresentations or threaten defendant with a greater crime for
lying to police); State v. Underhill, 346 P.3d 1214, 1217 (Or. Ct.
App. 2015)(finding the defendant's statements in the context of
the polygraph exam process were voluntary and not the product of
17 A-0359-15T3
Also, in assessing the voluntariness of defendant's
statement, the trial court considered the nature of the
investigation: defendant was informed "nobody could force him to
take" the polygraph; the door in the interrogation room was
unlocked and defendant was free to leave at any time; he was told
he was not under arrest; defendant was given multiple breaks,
allowed trips to the bathroom, and water to drink. The balance
of these factors establish that defendant was not subjected to
substantial psychological pressure during interrogation. See Cook,
179 N.J. at 563. Because defendant's free will was not overborne
based on a totality of the circumstances, his inculpatory
statements were correctly determined by the trial court to be
voluntary.
Finally, while defendant agrees with the polygraph's
inadmissibility, he argues that it was prejudicial for the jury
to be instructed to assess the reliability of his inculpatory
statements without knowledge of the detective's use of the failed
polygraph. However, because we find that defendant's statements
were voluntarily given, there was no coercive intervening event
that the jurors needed to be informed about and the trial court
did not err in excluding all references to the polygraph.
unlawful police conduct, despite the officer telling defendant the
polygraph was "97.3 percent accurate" prior to taking the test).
18 A-0359-15T3
III.
We agree, however, with defendant's contention in Point III
that the trial court should have charged the jury on the second-
degree sexual assault charge. The trial court's refusal — because
it would be "a violation of double jeopardy" — was contrary to
State v. Villar, 150 N.J. 503, 518 (1997) and State v. Short, 131
N.J. 47, 62-63 (1993), and warrants reversal.
"Appropriate and proper charges to a jury are essential for
a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Pursuant
to N.J.S.A. 2C:1-8(e), the court "shall not charge the jury with
respect to an included offense unless there is a rational basis
for a verdict convicting the defendant of the included offense."
Accordingly, when a defendant's request to instruct the jury on a
lesser-included offense is denied, "an appellate court reviews the
denial of that request, determining whether 'the evidence presents
a rational basis on which the jury could [1] acquit the defendant
of the greater charge and [2] convict the defendant of the
lesser.'" State v. Carrero, 229 N.J. 118, 128 (2017) (quoting
State v. Brent, 137 N.J. 107, 117 (1994)). If a rational basis
exists, "a trial court's failure to give the requested instruction
is reversible error." Ibid.In Short, 131 N.J. at 63, the Court upheld a defendant's
right for a jury to consider a lesser-included offense despite the
19 A-0359-15T3
fact that the offense was barred by the applicable statute of
limitations. In that case, the trial court granted defendant's
request for a jury instruction on the lesser-included offense of
manslaughter but told the jury over defendant's objection that if
it found the defendant guilty of manslaughter, the defendant would
be acquitted as the statute of limitations had run on that offense.
Id. at 51. Defendant appealed after he was convicted of murder,
arguing that the instructions on the lesser-included offenses
should not have been accompanied by warnings that he would be
acquitted. Id. at 51.
The Court reversed our affirmance of the conviction and held
that the defendant was entitled "to have the jury instructed on
all lesser[-]included offenses supported by the record," without
warnings about the sentencing outcome and further held that a
defendant had a right "not to be convicted of a crime whose statute
of limitations had passed" and these rights were not "conditioned
on the relinquishment of the other." Id. at 52.
In Villar, 150 N.J. at 508, a jury found a defendant guilty
of second-degree aggravated assault but acquitted the defendant
on third-degree aggravated assault. We vacated the second-degree
aggravated assault conviction and held that there be no retrial
on the second-degree charge "because the jury acquitted defendant
on the third-degree charge . . . this lesser-included offense
20 A-0359-15T3
cannot be charged at retrial, thus hindering a fair retrial of the
greater offense." Id. at 517.
The Court reversed and ordered a retrial on the second-degree
charge. Id. at 518-19. Providing guidelines for the retrial, the
Court acknowledged the double jeopardy implications of its
decision:
We realize that, because of the constitutional
prohibition against double jeopardy,
defendant cannot be recharged with or
convicted of the third-degree aggravated
assault. However, at defendant's request, the
jury could be charged with that offense as a
lesser-included offense of second-degree
aggravated assault and should the jury return
a verdict of guilt on that count, defendant
would stand acquitted.
[Id. at 518.]
The State maintains that Villar is inapplicable because count
two is not a lesser-included offense to count one as the
culpability requirement for second-degree sexual assault charge
is higher than for first-degree aggravated sexual assault. It is
unnecessary to resolve this point because the State applies the
wrong legal standard.
When a defendant requests a charge on a lesser-included
offense, the inquiry focuses on rationality: "whether the lesser
offense is strictly 'included' in the greater offense, as defined
by N.J.S.A. 2C:1-8d, is less important to a trial court's
determination to charge the offense than whether the evidence
21 A-0359-15T3
presents a rational basis on which the jury could acquit the
defendant of the greater charge and convict the defendant of the
lesser." Brent, 137 N.J. at 117. A low threshold is set by the
rational-basis test. State v. Crisantos, 102 N.J. 265, 278 (1986).
"A defendant is entitled to a lesser-included offense instruction
rationally supported by the evidence, even if the instruction is
inconsistent with the defense theory." Carrero, 229 N.J. at 128.
"[O]ur Court has determined that failure to instruct the jury at
the defendant's request on a lesser charge for which the evidence
provides a rational basis warrants reversal of the defendant's
conviction." Brent, 137 N.J. at 118.5
Here, there was evidence in the record that provided a
rational basis for including the lesser-included charge. Indeed,
the police and J.C.'s parents testified that J.C. told them
defendant bit or put his penis in defendant's mouth. However at
trial, J.C. testified that defendant touched his penis with his
hand, not his mouth. This provided a rational basis for the jury
to have convicted defendant on the lesser sexual assault charge
if it did not believe defendant put J.C.'s penis in his mouth but
instead touched it with his hand. Compare N.J.S.A. 2C:14-2(a)(1)
5
Additionally, we note that we have previously characterized
second-degree sexual contact as a lesser offense than first-degree
aggravated sexual assault. See State v. Ramos, 226 N.J. Super.
339, 340 (App. Div. 1988); State v. J.S., 222 N.J. Super. 247, 250
(App. Div. 1988).
22 A-0359-15T3
(a person is guilty of aggravated sexual assault "if he commits
an act of sexual penetration with another person . . . [under] 13
years old") with N.J.S.A. 2C:14-2(b) (a person is guilty of "sexual
assault if he commits an act of sexual contact with a victim who
is less than 13 years old and the actor is at least four years
older than the victim"). Accordingly, the trial court's refusal
to charge the jury consistent with Short and Villar was reversible
error.
IV.
Defendant next argues in Point IV that the trial court
improperly admitted five out-of-court statements from the victim,
his parents, a detective, and a child abuse pediatrician.
Defendant contends the statements were inadmissible hearsay,
cumulative, and should have been excluded under N.J.R.E. 403. We
affirm the challenged evidentiary rulings with two exceptions
which we address for purposes of the remanded proceedings.
A trial court's evidentiary rulings are "entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment." State v. Brown, 170 N.J.
138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). Unless the trial court "was so wide of the mark that a
manifest denial of justice resulted," we may not substitute our
23 A-0359-15T3
judgment for that of the trial court. Marrero, 148 N.J. at 484(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
The trial court admitted J.C.'s recorded statement, his
statements to his parents, and to the detective pursuant to
N.J.R.E. 803(c)(27), which permits the admissibility of out-of-
court statements made by children relating to a sexual offense. 6
We conclude based on our review of the trial record that: (1)
J.C.'s father's testimony about what the victim told him – that
defendant bit his "peepee"; (2) the detective's testimony about
J.C.'s statements to his mother at the police station; (3) the
victim's own recorded statement given at the police station; and
(4) J.C.'s mother's testimony about his out-of-court statements
to her in their home were clearly admissible in accordance with
N.J.R.E. 803(c)(27) as all three prongs of the Rule were satisfied.
We find defendant's arguments challenging the admissibility of
this evidence to be without merit and not warranting extended
discussion in a written opinion. R. 2:11-3(e)(2).
6
Statements made out-of-court by a child under the age of 12
relating to sexual misconduct committed with or against the child
are admissible if (1) the opposing party is on notice; (2) the
court finds there is a probability that the statement is
trustworthy, and (3) the child testifies at the proceeding, or the
child is unavailable as a witness and there is corroborating
admissible evidence. N.J.R.E. 803(c)(27).
24 A-0359-15T3
Defendant also argues the testimony of the child abuse
pediatrician, who was also qualified as an expert, was improperly
admitted under N.J.R.E. 803(c)(4), which deems admissible
"[s]tatements made in good faith" for the "purposes of medical
diagnosis or treatment," because the statements made by the victim
to the pediatrician were not relevant to diagnosis or treatment.
Specifically, the pediatrician testified that J.C. stated during
her examination that "he bit here" and "pointed to his penis." We
find no abuse of discretion in the trial court's admission of this
testimony under N.J.R.E. 803(c)(4) because our review of the record
confirms that J.C.'s statements occurred when he was brought to
the pediatrician for the purpose of treatment as a result of the
alleged sexual assault and not evidence gathering. Cf. In the
Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985)
(doctor's testimony pertaining to a child's statements regarding
alleged abuse inadmissible because the doctor was consulted for
evidence gathering purposes).
Finally, defendant's reliance upon State v. E.B., 348 N.J.
Super. 336 (App. Div. 2002) for the proposition that prejudicial
"extra weight" was afforded to J.C.'s allegations based on the
number of admitted out-of-court statements of abuse is misplaced.
In E.B., 348 N.J. Super. at 338, 346, the trial court excluded
testimony of a vital defense witness allowing only the defendant
25 A-0359-15T3
to testify on his behalf but permitting the State to present five
witnesses who testified pursuant to N.J.R.E. 803(c)(27). In that
case, although we cautioned about the "extra weight" that may be
given when multiple witnesses testify to abuse, our criticism was
not directed to the prosecution's use of multiple witnesses but
rather the trial court's failure to give a "modicum of compensatory
liberality to [the] defendant in the presentation of his proofs."
Id. at 346. Here, the jury heard the child's version multiple
times but unlike in E.B., defendant was not denied testimony of a
vital witness to his case. Under these circumstances we find no
reason to conclude that the trial court abused its discretion in
determining that the probative value of the multiple out-of-court
statements was not "substantially outweighed" by the risk of "undue
prejudice" or the "presentation of cumulative evidence." N.J.R.E.
403.
However, the trial court permitted over defendant's objection
the testimony of the treating child abuse pediatrician that during
the history portion of J.C.'s examination his mother informed her
"there was oral genital contact." The trial court admitted the
testimony pursuant to N.J.R.E. 803(c)(4) concluding the hearsay
was "reasonable." While the child's statements were clearly
admissible, it was error to permit the treating pediatrician to
channel the child's statement through the cumulative hearsay
26 A-0359-15T3
statement of his mother for the stated purpose of treatment or
diagnosis.
Similarly, although the trial court properly sustained
defendant's objection and precluded the pediatrician from
testifying about where in the home the alleged abuse took place
as clearly unrelated to medical diagnosis or treatment, the witness
was nevertheless permitted to testify regarding the movie that
J.C. was watching during one of the encounters. We conclude that
such a corroborative fact should not have been admitted through
the doctor as it was irrelevant to treatment or diagnosis and was
cumulative of other evidence. Because we are reversing the
conviction on other grounds, we need not determine if the erroneous
introduction of this evidence resulted in a manifest denial of
justice. That error, however, should not be repeated in any future
proceedings in this case.
V.
Finally, we reject defendant's collateral estoppel argument
in Point V and find it to be without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(2). We
provide only these brief comments.7
7
The collateral estoppel issue was not raised before the trial
court directly. Rather, it was framed by defendant as a double
jeopardy argument. Applying either the plain error or harmless
error standard, Rule 2:10-2, we conclude the trial court committed
27 A-0359-15T3
Defendant maintains that because the first jury acquitted him
on count two, it definitively determined that he had not acted
"purposely" and thus the State was barred from litigating that
issue at the second trial. Defendant's argument, however, rests
on an incorrect assumption regarding the first jury's verdict and
a mischaracterization of the subsequent trial proceedings.
While it is true that the first jury acquitted defendant on
count two, which has a "purposeful" mens rea element, the
definition of "sexual contact" under that count requires the
defendant to commit sexual contact for the specific purpose of
"degrading or humiliating the victim or sexually arousing or
sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Thus, as
the State correctly observes, it is equally as possible that the
first jury acquitted defendant on count two because they did not
believe he acted with these motivations. Nevertheless, even if
we were to assume that the jury found that defendant did not have
a "purposeful" mental state, we are satisfied after our review of
the trial record that the prosecution in its pursuit of a
conviction for counts one and three, did not attempt to argue that
defendant acted purposefully and thus the proscriptions against
re-litigating a previously decided issue addressed in Ashe v.
no error on this point, let alone any that produced an unjust
result.
28 A-0359-15T3
Swenson, 397 U.S. 436, 444 (1970) and State v. Cormier, 46 N.J.
494 (1966) are inapplicable here.
Unlike in Ashe, a fair reading of the record in the second
trial fails to support defendant's assertion that the State was
re-litigating an issue addressed previously — the acquitted charge
of sexual contact. The essence of defendant's allegations that
the State re-litigated the mental culpability issue stems from
statements made during the prosecutor's closing, which defendant
characterizes as arguments in favor of purposeful action. Yet,
defendant was not re-indicted on "purposeful" sexual contact nor
was the jury given instruction that the State had to prove
"purposeful" intent. Further, to convict defendant for aggravated
sexual assault under N.J.S.A. 2C:14-2(a)(1), the State only needed
to prove that defendant acted "knowingly." In this regard, the
prosecution repeatedly emphasized the word "knowledge" and that
defendant "knew what he was doing" during closing argument.
Affirmed in part, reversed in part and remanded for a new
trial. We do not retain jurisdiction.
29 A-0359-15T3