STATE OF NEW JERSEY VS. GERALD B. WILSON (13-05-0452, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0434-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERALD B. WILSON,
Defendant-Appellant.
_________________________
Submitted December 17, 2019 – Decided January 30, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 13-05-
0452.
Joseph E. Krakora, Public Defender, attorney for
appellant (Cody Tyler Mason, Assistant Deputy Public
Defender, of counsel and on the briefs).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
Christopher Sayer, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Gerald Wilson appeals from his convictions for first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count one); second-degree
child endangerment, N.J.S.A. 2C:24-4(a) (count two); two counts of third-
degree witness tampering, N.J.S.A. 2C:28-5(a)(1) (counts three and four); two
counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts five and
six); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count seven); third-
degree criminal restraint, N.J.S.A. 2C:13-2(a) (count eight); and second-degree
kidnapping, N.J.S.A. 2C:13-1(b) (count nine). We affirm the convictions but
reverse the imposition of the $30 per month Sex Offender Supervision Fund
(SOSF) penalty, which was improperly assessed. We also remand and direct the
judge to conduct a hearing on defendant's ability to pay restitution to the Victims
of Crime Compensation Office (VCCO) and on the penalty for the Sex Crimes
Victim Treatment Fund (SCVTF), and to amend the judgment of conviction
(JOC).
I.
We discern the following facts from the evidence adduced at trial.
Defendant was married to C.M. 1 in 2008. C.M. has two daughters from a prior
relationship, J.P., a minor, and M.P., an older daughter who did not live with the
1
We use initials to identify C.M. and others involved. See R. 1:38-3(c)(9).
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couple, and a minor son, O.P. After marrying defendant, C.M. and her two
minor children moved in with defendant. He began sexually abusing J.P. almost
immediately. C.M. and her children are undocumented immigrants from
Mexico.
The morning of November 10, 2009, defendant and C.M. left their home
for work while J.P. and O.P. were still asleep. Approximately twenty minutes
later, C.M. returned home because she forgot something. Upon her arrival, C.M.
found defendant standing partially undressed with J.P. on the bed in her
underwear. C.M. accused defendant of sexually abusing her daughter.
Later that day, J.P. told her mother that defendant had been sexually
assaulting her for a year and a half and repeatedly forced her to have oral and
vaginal sex with him. J.P. also reported to her mother that when J.P refused to
have sex with defendant, he threatened to kill her with a gun, then dragged her
by the hair into the bedroom and forced her to have sex with him.
Following their conversation, C.M. and J.P. went home and confronted
defendant. He grabbed J.P. by the throat and struck her near her eye. Defendant
threatened them not to tell anyone about the incident, while pointing a pistol at
them, or else he would report them to immigration authorities. He also told
C.M. that "something will happen" to her children.
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C.M. attempted to call the police but defendant threw her phone to the
ground. Ultimately, J.P. contacted the police. Initially, C.M. lied to the police
and told them that her dispute with defendant was over J.P.'s cell phone
privileges because she feared being deported. At a later time, C.M. told the
police she caught defendant sexually abusing J.P. After being threatened again
by defendant, C.M. recanted her story. J.P. similarly refused to undergo a
gynecological examination related to the alleged abuse and told the doctor she
fabricated the allegations. Thereafter, defendant sent J.P. on a one-way trip to
Mexico to live with C.M.'s friends.
At trial, O.P. testified that on another occasion, he observed defendant
leaving J.P.'s bedroom in his underwear, and defendant warned O.P. that he
would "send [him] to Mexico" if he told anyone. Thereafter, defendant made
death threats against O.P.
Evidence was also presented that defendant sexually assaulted M.P. He
forced M.P. to get in his car, took her to his house, and forced her to have sex
with him. Defendant showed M.P. a gun and threatened to deport her family if
she told anyone about the incident. Sometime between April and June 2010,
defendant went to the bakery where M.P. worked and asked her to come to his
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house, but she refused. Meanwhile, C.M. left defendant in June 2010, and
moved her children out of the home.
On June 21, 2010, M.P. exited a laundromat and observed defendant
following her. She entered a nearby Burger King and asked the cashier to call
the police. Defendant followed her into the Burger King and requested that she
go home with him. Before the police arrived, defendant walked away and left
his car in the parking lot.
State Trooper Brian Stanker responded and observed M.P. to be visibly
shaken. At trial, Stanker testified that he reviewed the security footage video
which showed defendant and M.P. speaking outside the restaurant, and after she
went inside, defendant tried to watch her through the windows. M.P. reported
defendant's sexual abuse to Detective Adam Capoferri of the New Jersey State
Police.
Defendant denied the allegations, claiming that he was suffering from
erectile dysfunction since 2007 and therefore, it was impossible for him to have
committed the sexual assaults. At trial, he testified about various erectile
dysfunction medications he took but did not work. He also denied threatening
C.M., J.P., or M.P.
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In January 2011, the Cumberland County Prosecutor's Office arranged for
J.P. to return to the United States legally, and she gave a statement to Detective
Capoferri about defendant's sexual abuse.
At the conclusion of trial, a jury convicted defendant on all nine counts.
The judge imposed an aggregate prison term of thirty-eight years, with thirty-
four years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
Parole Supervision for Life, N.J.S.A. 2C:43-6.4, Megan's Law, N.J.S.A. 2C:7-1
to -23, fines, penalties, and $1470 in restitution to the VCCO.
On appeal, defendant argues the following points:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN NOT SEVERING COUNTS RELATING
TO DIFFERENT WITNESSES AND EVENTS (Not
Raised Below); IN ADMITTING IRRELEVANT AND
PREJUDICIAL OTHER-CRIME EVIDENCE
(Partially Raised Below); AND IN NOT
INSTRUCTING THE JURY ON HOW TO
CONSIDER THE EVIDENCE. (Not Raised Below).
A. The Trial Court Committed Plain Error By Not
Severing The Counts Concerning Different
Incidents And Witnesses.
B. The Trial Court Committed Plain Error In
Admitting Other-Crime Evidence Of Defendant
Allegedly Stalking And Twice Attempting To
Kidnap A Complaining Witness.
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C. The Trial Court Committed Reversible Error In
Admitting Bad-Act Evidence Of Defendant
Allegedly Threatening, Stalking, And Abusing
The Witnesses.
D. The Trial Court Committed Plain Error In Not
Instructing The Jury To Consider The Offenses
Separately And To Not Use Them Or The Bad-
Act Evidence For Propensity.
POINT II
A NEW TRIAL IS REQUIRED BECAUSE THE
STATE UNFAIRLY BOLSTERED ITS CASE WITH
IMPROPER HEARSAY TESTIMONY (Not Raised
Below), OPINION TESTIMONY (Not Raised Below),
TESTIMONY THAT VIOLATED THE BEST-
EVIDENCE RULE, AND TESTIMONY AIMED AT
APPEALING TO THE JURY'S EMOTIONS.
(Partially Raised Below).
A. The Trial Court Committed Plain Error In
Admitting Corroborative Hearsay Testimony
About The Allegations.
B. The Trial Court Committed Plain Error In
Admitting Opinion Testimony Regarding
Defendant's Guilt.
C. The Trial Court Committed Reversible Error In
Allowing Testimony About What Was On A
Surveillance Video That Was Not Presented At
Trial.
D. The Trial Court Committed Reversible Error In
Allowing The State To Elicit Irrelevant And
Highly Inflammatory Testimony Aimed At The
Jury's Emotions.
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POINT III
REVERSAL IS REQUIRED BECAUSE THE
PROSECUTOR ENGAGED IN REVERSIBLE
MISCONDUCT AIMED AT IMPROPERLY
BOLSTERING THE STATE'S CASE AND
DISPARAGING THE DEFENSE. (Not Raised
Below).
POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DEPRIVED DEFENDANT OF DUE
PROCESS AND A FAIR TRIAL AND WARRANTS
REVERSAL OF HIS CONVICTIONS. (Not Raised
Below).
POINT V
RESENTENCING IS REQUIRED BECAUSE THE
COURT FAILED TO ADDRESS REQUESTED
MITIGATING FACTORS; RESTITUTION WAS
ORDERED FOR A NON-VICTIM; THE COURT DID
NOT HOLD A HEARING ON THE FINES TO BE
PAID; AND THE $30-PER MONTH SEX OFFENDER
FINE WAS UNCONSTITUTIONALLY IMPOSED.
A. The Trial Court Erred In Failing To Address The
Mitigating Factors Raised By The Defense.
B. The Trial Court Erred In Imposing Restitution
For A Non-Victim And In Doing So Without A
Hearing.
C. A Remand Is Required Because The Trial Court
Imposed $3000 In SCVTF Penalties Without A
Hearing.
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D. A Remand Is Required To Remove The $30-Per-
Month Sex Offender Supervision Fee.
II.
A. Severance
Defendant argues that the trial court erred by failing to sever the counts
of the indictment as to J.P. and M.P. This issue was not raised below. Therefore,
we must consider whether the court's failure to sever the charges for trial was
erroneous and, if so, whether it constituted plain error, which is an error "clearly
capable of producing an unjust result." R. 2:10-2. He further claims the trial
court erred by allowing other crime evidence to be admitted as inherently
prejudicial.
Rule 3:15-2(b) provides that the court may order separate trials if "it
appears that a defendant or the State is prejudiced by a permissible or mandatory
joinder of offenses . . . ." In determining if joinder is prejudicial to a defendant,
the court considers whether, if the crimes were tried separately, evidence of the
severed offenses "would be admissible under [Rule 404(b)] in the trial of the
remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996)
(alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989));
State v. Oliver, 133 N.J. 141, 150-51 (1993).
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Defendant argues he was prejudiced by the charges involving C.M. and
J.P. being tried together with those involving M.P. because "their simultaneous
presentation was clearly capable of influencing the jury's deliberations," and the
sexual assaults of each sister were "not relevant to each other." He contends
that the alleged assaults on J.P. and related threats to her and C.M. (counts one
through six) occurred on different dates, in different places and under different
circumstances from the alleged assaults on M.P. (counts seven through nine).
We are not persuaded by these arguments.
Rule 3:7-6 provides:
Two or more offenses may be charged in the same
indictment or accusation in a separate count for each
offense if the offenses charged are of the same or
similar character or are based on the same act or
transaction or on [two] or more acts or transactions
connected together or constituting parts of a common
scheme or plan. Relief from prejudicial joinder shall
be afforded as provided by R. 3:15-2.
Rule 3:15-1 provides:
(a) Permissible Joinder. The court may order [two] or
more indictments or accusations tried together if the
offenses and the defendants, if there are [two] or more,
could have been joined in a single indictment or
accusation. The procedure shall be the same as if the
prosecution were under such single indictment or
accusation.
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(b) Mandatory Joinder. Except as provided by R. 3:15-
2(b), a defendant shall not be subject to separate trials
for multiple criminal offenses based on the same
conduct or arising from the same episode, if such
offenses are known to the appropriate prosecuting
officer at the time of the commencement of the first trial
and are within the jurisdiction and venue of a single
court.
If, however, "it appears that a defendant or the State is prejudiced by a
permissible or mandatory joinder of offenses or of defendants in an indictment
or accusation, the court may order an election or separate trials of counts . . . ."
R. 3:15-2(b). Rule 3:15-2(c) provides that "[a] motion for separate trial of
counts of an indictment or accusation must be made pursuant to R. 3:10-2, unless
the court, for good cause shown, enlarges the time."
We note that neither party moved for severance here. And, "[t]he decision
whether to grant severance rests within the trial court's sound discretion and is
entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990).
Further, a trial judge has the discretion to "order separate trials on counts of an
indictment if a party is prejudiced by their joinder." Oliver, 133 N.J. at 150.
Specifically, "[t]he test for assessing prejudice is 'whether, assuming the
charges were tried separately, evidence of the offenses sought to be severed
would be admissible under [Rule 404(b)] in the trial of the remaining charges.'"
State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting
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Chenique-Puey, 145 N.J. at 341). The judge properly tried the charges together.
We consider next defendant's argument regarding the admission of other
bad acts evidence. Rule 404(b) provides:
[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.
Our Supreme Court has set forth the following criteria for admitting other-
crimes evidence under Rule 404(b):
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.
[State v. Cofield, 127 N.J. 328, 338 (1992) (citation
omitted).]
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The trial court's analysis under Cofield should only be disturbed if there
is a "clear error of judgment." State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting
State v. Barden 195 N.J. 375, 390-91 (2008)).
Our careful review of the record reveals there was no undue prejudice
resulting from the joint trial. Here, under the first Cofield prong, defendant's
sexual assault of J.P., and his threats to her and C.M., are relevant to his sexual
assault of M.P. And, defendant's sexual assault of M.P. is relevant to his sexual
assaults of J.P. and related threats to her and C.M. In a similar vein, defendant's
threats to call immigration officials regarding both daughters were based on his
knowledge that they were undocumented. We reject defendant's argument that
these offenses were not part of a common plan or scheme.
Under the second Cofield prong, the acts were similar in kind and
reasonably close in time. Defendant's sexual assaults of J.P. occurred from mid-
2008 through late 2009 in his home. Defendant's sexual assaults of M.P. began
in the first six months of 2010, shortly after he sent J.P. to Mexico. Like the
sexual assaults on J.P., the acts against M.P. were committed in defendant's
home. In both cases, defendant threatened to harm or kill the victims, and
manipulated them by taking advantage of their undocumented status as a means
of ensuring their silence.
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Under the third Cofield prong, there was clear and convincing evidence to
show that defendant committed both sets of crimes. J.P. and M.P. presented
credible and consistent allegations against defendant at trial. C.M. and O.P.
confirmed many of these allegations based upon their own personal
observations. Moreover, the responding officer's testimony corroborated J.P.
and M.P.'s version of the events that transpired.
Finally, under the fourth Cofield prong, the probative value in this case is
not outweighed by any prejudicial effect. The evidence showed the feasibility
of defendant sexually assaulting J.P. and M.P. in his home. Further, h is
persistent threats regarding deportation explain why the victims did not
immediately come forward. We conclude defendant's claim that other crime
evidence has a "unique tendency to turn a jury against the defendant," State v.
Reddish, 181 N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289, 302
(1989)), is overcome by the highly probative evidence here.
B. Stalking and Attempted Kidnapping of M.P.
Defendant argues that he was prejudiced by the admission of evidence of
his bad acts in stalking and attempting to kidnap M.P. in 2010, for which he was
never charged. We are not persuaded by this argument.
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M.P. testified about defendant showing up at two of her workplaces and
attempting to force her back to his house. Defendant did not object to her
testimony.
Bad act evidence must be limited "by confining its admissibility to those
facts reasonably necessary" to prove the issue. State v. Fortin, 318 N.J. Super.
577, 598 (App. Div. 1999). Such evidence may not be used to "suggest that
because the defendant is a person of criminal character, it is more probable that
he committed the crime for which he is on trial." State v. Weeks, 107 N.J. 396,
406 (1987) (citation omitted).
M.P.'s testimony was properly admitted. We reiterate that the four Cofield
prongs were met. Moreover, Stanker's testimony confirmed that M.P. and
defendant had an encounter at Burger King. The stalking and kidnapping
episodes show defendant's predatory plan towards M.P. and his repeated
opportunities to abduct and assault her. The acts are also relevant to demonstrate
defendant's sexual abuse of J.P., and related threats to her and C.M., based upon
his paternal and marital connection to the victims.
C. Threatening, Stalking, and Abusing O.P. and J.P.
Next, defendant argues that the judge erred in admitting bad act evidence
of his threat to kill O.P., defendant's contacting J.P. while she was in Mexico,
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and evidence of his intoxication on November 10, 2009, the same day as one of
the sexual assaults of J.P. Again, we reject defendant's arguments.
O.P. testified that after he saw defendant emerge from J.P.'s bedroom,
defendant repeatedly threatened to have him deported or killed if he told anyone.
J.P. testified that while in Mexico, she frequently moved because defendant
called her and told her he wanted to visit her. Defense counsel did not object to
this testimony. However, State Trooper Brian McCarty testified that defendant
was intoxicated on November 10, 2009, at his home, and defense counsel
objected to the characterization of defendant as being intoxicated. We review
the former statements under a plain error standard, but reference to defendant's
alleged intoxication is reviewed under the harmful error standard. State v.
Gorthy, 226 N.J. 516, 539 (2016); R. 2:10-2.
Under the first Cofield prong, defendant's threats to O.P., his contacting
J.P. while she was in Mexico, and evidence of his intoxication were all relevant
to the crimes charged. And, his intoxication is relevant as to his state of mind
and motive for his conduct on November 10, 2009.
Under the second Cofield prong, the acts were similar in kind and
reasonably close in time to the crimes charged—they occurred only within a few
weeks of the sexual assaults. Under the third Cofield prong, C.M., O.P., and
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J.P. credibly testified about these acts, and McCarty's testimony established
defendant's intoxication. Under the fourth Cofield prong, the evidence
collectively was highly probative as to how defendant took advantage of his
marital relationship with C.M.
D. Jury Charge
Next, defendant argues for the first time on appeal, that the judge
committed plain error by failing to instruct the jury that each offense must be
considered separately, and evidence regarding some victims cannot be used as
evidence that defendant had a propensity to commit the offenses regarding other
victims. He also argues that the judge did not properly instruct the jury not to
consider the cumulative impact of all of the offenses.
The State contends that the testimony regarding defendant's visits to
M.P.'s workplace is not evidence of other crimes because no charges arose from
these incidents. Hence, there was no need to instruct the jury on the limited
purpose for which the jury could consider the statements.
At the charge conference, neither defendant nor the State sought a limiting
instruction on the other crimes or bad acts evidence, nor did they object to the
court's proposed final charge. Because defendant did not bring this issue to the
attention of the trial judge, we review it under a plain error standard. R. 2:10-
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2. When we review an issue under the plain error standard, we will not reverse
a conviction unless an error committed at trial was "clearly capable of producing
an unjust result . . . ." Ibid. The error must have been "sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it otherwise might
not have reached[.]" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.
2011) (alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454
(2008)).
The jury charge did not include any instruction on the use of other crimes
or bad acts evidence. And, where multiple charges are tried together as was the
case here, the model jury charge provides for an instruction directing the jury to
consider the charges separately. See Model Jury Charges (Criminal), "Multiple
Charges" (rev. Jan. 14, 2013). The State argues that defendant has waived this
argument by not raising it below.
Considering that defendant's visits to the bakery and Burger King to see
M.P. did not result in charges being pressed against defendant, and thus, did not
invoke Rule 404(b), we discern no prejudice or error. Moreover, the evidence
against defendant here was overwhelming. Trial errors may be found harmless
when evidence of guilt is overwhelming. See Gillespie, 208 N.J. at 93 (2011).
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We conclude the error was harmless in light of the strength of the evidence
connecting defendant to the crimes. Therefore, we reject defendant's contention.
III.
A. Hearsay Testimony
For the first time on appeal, defendant contends the trial judge's admission
of four instances of "hearsay" testimony was an abuse of discretion resulting in
plain error, which violated the hearsay rules. Specifically, he alleges that the
judge erred by permitting the following testimony:
(1) M.P.'s testimony that defendant sent her to
Mexico;
(2) O.P.'s testimony that he learned defendant
sexually assaulted J.P.;
(3) C.M.'s testimony that she learned defendant
sexually assaulted M.P.; and
(4) McCarty's testimony that he received "alternative
information" corroborating the sexual assault of J.P.
Hearsay is an out-of-court statement "offered in evidence to prove the
truth of the matter asserted." N.J.R.E. 801(c); see also State v. Savage, 172 N.J.
374, 402 (2002). We review the admission of evidence employing an abuse of
discretion standard.
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At trial, M.P. was asked, "[w]hen [J.P.] was sent to Mexico, at the time,
did you know why she was sent to Mexico" and M.P. replied "[b]ecause
[defendant] had sent her." Next, O.P. described the police visit to his home on
November 10, 2009. When asked "did you find out that defendant sexually
assaulted [J.P.]," he replied "[y]es". Further, the prosecutor asked C.M., "[w]as
there a point in time that you found out that your other daughter, [M.P.], had
been sexually assaulted by the defendant," and she replied "[y]es". Defense
counsel did not object to any of this testimony.
Lastly, McCarty testified after he established that defendant had claimed
the November 10, 2009 incident was related to J.P.'s phone privileges:
Prosecutor: Now you spoke with other parties on scene,
correct?
McCarty: Yes.
Prosecutor: And is it true that they provided alternative
information regarding what happened?
McCarty: Yes.
McCarty did not specify what this alternative information was, nor did he recite
statements from others. Again, defense counsel did not object.
Because none of the testimony was hearsay, there was no error in
admitting it. M.P. testified based upon her own personal knowledge. O.P.'s
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testimony was not offered to prove that the sexual assault happened but to
describe his own perception and recollection surrounding the sexual assault and
to establish when he became aware of the allegations made by his sister. C.M.'s
testimony indicated when she became aware of the accusations against
defendant, not to prove that the sexual assault occurred. Lastly, McCarty's
testimony was not hearsay because he merely recounted his observations and
experiences in responding to an emergency and simply acknowledged there were
conflicting reports.
B. Opinion Testimony
Next, defendant argues that the judge committed plain error by admitting
opinion testimony by McCarty about J.P. sustaining injuries consistent with an
assault on November 10, 2009. At trial, the prosecutor asked McCarty about his
investigation on November 10, 2009: "[C]ould you observe any signs of injury
on [J.P.] that would have corroborated the allegation of simple assault?" He
replied "[y]es," and described the bruises on J.P.'s neck, face, and arms which
led him to arrest defendant for simple assault. Defendant did not object to this
testimony, and therefore, we review it under the plain error standard.
Under Rule 701, if a witness is not testifying as an expert, the witness's
testimony in the form of opinions or inferences may be admitted if it "(a) is
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rationally based on the perception of the witness and (b) will assist in
understanding the witness's testimony or in determining a fact in issue."
"Courts in New Jersey have permitted police officers to testify as lay
witnesses, based on their personal observations and their long experience in
areas where expert testimony might otherwise be deemed necessary." State v.
LaBrutto, 114 N.J. 187, 198 (1989). However, a police officer may not provide
testimony on the ultimate issue of guilt or innocence. State v. McLean, 205 N.J.
438, 461 (2011); State v. Odom, 116 N.J. 65, 77 (1989).
Here, McCarty merely reported his observations of J.P.'s injuries bas ed
upon his perception and lay observation. He did not opine as to defendant's guilt
and therefore, we reject defendant's contention.
C. Best Evidence Rule
Next, defendant argues that the judge erred in allowing Stanker to testify
about the contents of the Burger King surveillance video despite it not being
played to the jury, in violation of the best evidence rule. N.J.R.E. 1002.
Stanker explained that after speaking with M.P. at the Burger King, he
viewed the restaurant's surveillance tape. He testified that,
the surveillance showed [M.P.] pulling into the parking
lot at which time [defendant] pulled up alongside of her
vehicle, where they had a short conversation. [M.P.]
pulled into a parking spot[,] and [defendant] pulled the
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van next to her vehicle as well. He -- she exited her
vehicle to go into the Burger King. He later backed his
van up into the parking spot adjacent to hers across
from the next row of spots.
And while she was inside the Burger King, the
surveillance revealed that, you know, he pulled forward
and back several times. It appeared as though he was
trying to watch her through the windows of the Burger
King. And then he later exited his vehicle and walked
into the Burger King.
Once in there, the surveillance showed him exiting the
doors to the west side of the Burger King, and he went
south. There's a lot on the north side and a lot on the
south side as well. He walked out toward the lot on the
south side. And that's as far as we could see on the
surveillance.
Stanker testified that he was unable to obtain a copy of the surveillance
tape. Defendant objected to Stanker's testimony, but the judge allowed the
testimony because the video's contents were described in Stanker's police report,
and he was subject to cross-examination.
We review a trial court's evidentiary rulings for abuse of discretion.
Gorthy, 226 N.J. at 539. Thus, "trial courts are granted broad discretion in
making decisions regarding evidentiary matters . . . ." State v. Scharf, 225 N.J
547, 572 (2016) (citations omitted). This court will reverse an evidentiary ruling
only if it "was so wide off the mark that a manifest denial of justice resulted."
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Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016); Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 480, 492 (1999).
The "best evidence" provisions in Rule 1002, provide that "[t]o prove the
content of a writing or photograph, the original writing or photograph is required
except as otherwise provided in these rules or by statute." Rule 1001(b) clarifies
that video tapes fall within the purview of Rule 1002. However, Rule 1004
provides:
The original is not required and other evidence of the
contents of a writing or photograph is admissible if:
(a) Originals lost or destroyed. All originals are lost
or have been destroyed, unless the proponent lost or
destroyed them in bad faith; or
(b) Original not obtainable. No original can be
obtained by any available judicial process or procedure
or by other available means. . . .
A criminal defendant must demonstrate any prejudice as a result of the
prosecution's negligent loss or destruction of evidence in order to bar the State
from presenting testimony regarding that evidence. California v. Trombetta,
467 U.S. 479, 488–91 (1984); State v. Hollander, 201 N.J. Super. 453, 478–80
(App. Div. 1985); State v. Serret, 198 N.J. Super. 21, 26–27 (App. Div. 1984);
State v. Washington, 165 N.J. Super 149, 155–56 (App. Div. 1979).
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Where evidence is not being offered to prove the truth of its contents, but
rather as corroborative evidence of facts in evidence as here, testimony
regarding the contents will suffice. Nerney v. Garden State Hosp., 229 N.J.
Super. 37, 39 (App. Div. 1988). Here, the testimony about the contents of the
surveillance video was not offered for its substantive truth, but rather to
corroborate M.P.'s testimony that she had an encounter with defendant at Burger
King. Thus, under Nerney, we conclude Stanker's testimony was corroborative
and permissible.
Furthermore, defendant has not demonstrated substantial prejudice arising
from the absence of the video or from Stanker's testimony regarding its contents.
The surveillance video was not referenced to prove that he committed any of the
crimes alleged, as none of the charges against defendant arise from the Burger
King incident, but merely corroborated M.P.'s testimony that she spoke with
defendant at Burger King. Therefore, we reject defendant's argument.
D. Testimony Aimed at the Jury's Emotions
Next, defendant argues reversal is required because the prosecutor elicited
irrelevant and inflammatory testimony about J.P.'s loss of virginity, her
difficulty in testifying, and her views about defendant. No objection was raised
at trial. He also argues J.P. characterized him as "a wolf" and claims the court
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abused its discretion in admitting the testimony, over objection. J.P. testified
that losing her virginity to defendant was the "worst feeling in the world," and
it was not easy to share this information with strangers on the jury.
During cross-examination, defense counsel asked J.P. if she had heard of
the children's story "The Boy Who Cried Wolf," and implied that J.P. was
similar to the main character because she had initially lied to police about the
encounters with defendant. Later, J.P. testified on redirect:
Prosecutor: [Defense counsel] also used an analogy
about The Boy That (sic) Cried Wolf. And didn't -- and
you're familiar with that story, aren't you?
J.P: Yes.
....
Prosecutor: Has there always been a wolf in this case?
J.P: Yes.
Prosecutor: And who is that wolf?
J.P.: [Defendant.]
We consider the first three statements under the plain error standard, Rule
2:10-2, because there was no objection, but J.P.'s characterization of defendant
as a wolf is considered under the abuse of discretion standard in light of the
objection raised. See Gorthy, 226 N.J. at 539.
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Statements intended to arouse sympathy for a witness and anger toward a
defendant are not permitted. State v. Timmendequas, 161 N.J. 515, 693 (1999),
(citing State v. W.L., 292 N.J. Super. 100, 110-11 (App. Div. 1996)). It is
improper to refer to defendants as animals or engage in derogatory name calling.
State v. Williams, 113 N.J. 393, 455 (1988). However, in State v. T.E., 342 N.J.
Super. 14, 27 (App. Div. 2001), the court allowed graphic testimony by the child
victim in a sexual assault case over the defendant's objection that the State used
the victim as a "trial tool" to evoke the jury's sympathy.
Here, J.P.'s statements do not rise to the level of being prejudicial or
inflammatory. Her testimony was relevant to material facts in the determination
of defendant's guilt. J.P.'s statements about virginity demonstrate her moral
character and her unwillingness to have sexual relations with defendant. Even
where evidence is highly damaging to a defendant's case, this cannot serve as an
independent basis to exclude otherwise admissible and probative evidence.
State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015).
J.P.'s testimony referring to defendant as a "wolf" was not error because
it showed her sexual acts with defendant were not consensual. And, it was in
response to defense counsel's characterization of J.P. as a "girl who cried wolf."
Therefore, we reject defendant's arguments.
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IV.
Next, defendant maintains he was denied a fair trial when the prosecutor,
in her opening statement to the jury, said the case was about "fear, threats, and
control" over the family. Further, the prosecutor stated defendant purchased
J.P.'s plane ticket to Mexico, and her return was one of C.M.'s "biggest fears."
The prosecutor also stated that C.M. and J.P. initially lied to police in November
2009 and denied sexual abuse by defendant but later told the police defendant
"did something very similar" to J.P. as he had done to M.P. These statements
did not elicit any objections.
In our review, we must determine whether the statements complained of
wrongly contributed to defendant's conviction. See State v. Bankston, 63 N.J.
263, 272 (1973). Defendant contends that the statements amounted to
misconduct requiring reversal. While prosecutors occupy a special position in
our system of criminal justice, see, e.g., State v. Daniels, 182 N.J. 80, 96 (2004),
they are nevertheless entitled to zealously argue the merits of the State's case.
State v. Smith, 212 N.J. 365, 403 (2012). "The duty of the prosecutor 'is as
much . . . to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.'" Ibid.
(alteration in original) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
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Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding
of prosecutorial misconduct does not end a reviewing court's inquiry because,
in order to justify reversal, the misconduct must have been 'so egregious that it
deprived the defendant of a fair trial.'" State v. Smith 167 N.J. 158, 181 (2001)
(quoting Frost, 158 N.J. at 83). One factor to consider is whether there was a
proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409
(2012), because the lack of any objection indicates defense counsel "perceived
no prejudice." Smith, 212 N.J. at 407.
Following our review of the record, we conclude any error by including
these statements by the prosecutor was harmless. We weigh heavily the fact that
the comments did not evoke an objection or a subsequent request for a curative
instruction.
Defendant also argues the prosecutor's summation improperly suggested
he used "smoke and mirrors" regarding his erectile dysfunction to shift focus
from "the actual proofs." Again, this statement did not elicit any objection.
Prosecutors may not "make inaccurate legal or factual assertions during a trial"
and "must confine their comments to evidence revealed during the trial and
reasonable inferences to be drawn from that evidence." Smith, 167 N.J. at 178.
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We again conclude any error by including this statement in summation by
the prosecutor was harmless. And, no objection having been made to the
remarks, we deem the remarks not to be prejudicial. Timmendequas, 161 N.J.
at 576.
V.
Next, defendant claims that the cumulative effect of the trial errors
undermined his rights to due process and a fair trial warranting reversal of his
conviction. Defendant's argument is devoid of merit.
The cumulative effect of trial errors may merit reversal when it "casts
doubt on the propriety of the jury verdict that was the product of that trial." State
v. Jenewicz, 193 N.J. 440, 474 (2008). Reversal may be justified when the
cumulative effect of a series of errors is harmful even if each error itself is
harmless. Ibid. "[T]he predicate for relief for cumulative error must be that the
probable effect of the cumulative error was to render the underlying trial unfair."
State v. Wakefield, 190 N.J. 397, 538 (2007). Our careful review of the record
convinces us that there is no cumulative effect of any trial errors warranting
reversal.
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VI.
A. Sentence
Defendant contends that his sentence was excessive. Again, we disagree.
He contends the sentencing judge failed to apply mitigating factors, ordered
restitution for a non-victim, failed to conduct a hearing and make findings on
certain penalties assessed, and unconstitutionally imposed the $30 per month
SOSF penalty.
When we review a sentence, we do not substitute our own judgment for
that of the sentencing court. State v. Natale, 184 N.J. 458, 489 (2005). We limit
our inquiry to whether the sentencing guidelines were followed, whether there
was competent and credible evidence supporting the application of the
guidelines, and whether the sentence shocks the judicial conscience. Ibid.
The sentencing judge found aggravating factors one, the nature and
circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); three, the risk of
reoffending, N.J.S.A. 2C:44-1(a)(3); and nine, the need for deterrence, N.J.S.A.
2C:44-1(a)(9). The judge found mitigating factor seven, because defendant had
a criminal history, but it was primarily for old disorderly persons offenses,
N.J.S.A. 2C:44-1(b)(7).
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The court imposed a sentence of thirty-eight years of which thirty-four
years are subject to NERA. The sentence included consecutive sentences of
eighteen years subject to NERA for count one, four years for count four, eight
years subject to NERA on counts seven and nine, and concurrent sentences on
the remaining counts.
Defendant does not contest the aggravating factors; however, he argues
the judge erred in failing to address mitigating factors eight through twelve.
"[M]itigating factors that are suggested in the record, or are called to the court's
attention, ordinarily should be considered and either embraced or rejected on the
record." State v. Blackmon, 202 N.J. 283, 297 (2010). A trial court need not,
"explicitly reject each and every mitigating factor argued by a defendant." State
v. Bieniek, 200 N.J. 601, 609 (2010).
The sentencing judge reviewed defendant's history and concluded his
conduct surrounding the crimes was "appalling." The judge also noted
defendant preyed upon the victims' "perceived vulnerability to deportation."
The record reflects that the sentencing judge considered the mitigating factors
and its basis for rejecting them was implicit in its reasoning. We discern no
error in the application of the guidelines and the sentence imposed does not
shock the judicial conscience.
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B. Restitution
Next, defendant argues the sentencing judge erred in imposing restitution
for a non-victim and in doing so without a hearing. We agree.
The VCCO submitted a letter to the judge stating it paid $1470 for M.P.'s
psychological counseling bills in this matter and requested restitution in that
amount. Defendant did not challenge the legitimacy or amount of the bills. His
presentence report stated he had no assets or income.
Pursuant to N.J.S.A. 2C:43-3, the victim of a crime is entitled to receive
restitution from the offender at the time of sentencing. Further, "[t]he court shall
. . . order the defendant to pay any restitution ordered for a loss previously
compensated by the Board to the [VCCO]2."
Here, defendant's ability to pay restitution was disputed because he had
no assets or income. The sentencing judge made no findings on this issue.
Therefore, we remand to the sentencing judge to conduct a hearing relative to
imposing restitution for a non-victim and whether a VCCO penalty is warranted.
2
In 2008, the Violent Crime Compensation Board was renamed the Victims of
Crime Compensation Office. NJ Victims of Crime Compensation Office – 2016
Annual Report, https://www.njleg.state.nj.us/OPI/Reports_ to_the_Legislature/
victims_of_crime_ar_2016.pdf.
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C. SCVTF Penalty
Defendant also challenges the sentencing judge's imposition of a $3000
penalty payable to the SCVTF without a hearing or making any findings.
The sex offender penalty amounts listed in N.J.S.A. 2C:14-10 are the
maximum penalties the court may impose. See State v. Bolvito, 217 N.J. 221,
224 (2014). In fixing the penalty amount, the court should consider the nature
of the offense and the defendant's ability to pay. Id. at 233-35. The court should
enter a statement of reasons as to the amounts imposed. Id. at 224; State v.
Newman, 132 N.J. 159, 170 (1993); State v. Ferguson, 273 N.J. Super. 486, 499
(App. Div. 1994).
Here, defendant's presentence report indicates that defendant does not
have the ability to pay any fines or restitution. Nonetheless, contrary to Bolvito,
the sentencing judge made no findings as to his ability to pay and entered no
statement of reasons as to the amounts imposed. Therefore, we reverse and
remand for a hearing on the SCVTF penalty.
D. SOSF Penalty
Lastly, defendant argues a remand is required because the $30 per month
SOSF penalty was improperly imposed as an ex post facto law because the law
establishing this penalty, N.J.S.A. 30:4-123.97, was not effective until July 1,
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2014, more than four years after the last alleged incident in this case. He also
alleges that the penalty should not be imposed because he had no income, and
by its plain language, the penalty "shall not be assessed . . . if the person's income
does not exceed 149 percent of the federal poverty level." N.J.S.A. 30:4-123.97.
At sentencing, the judge correctly found that the SOSF penalty was not
applicable because the offense was committed before the effective date of
N.J.S.A. 30:4-123.9. However, the JOC indicates that a $30 per month SOSF
penalty was imposed under N.J.S.A. 30:4-123.97.
We reverse and on remand, direct the sentencing judge to remove the
SOSF penalty and amend the JOC accordingly.
Affirmed in part, reversed and remanded in part for further proceedings
consistent with our opinion. We do not retain jurisdiction.
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