STATE OF NEW JERSEY VS. C.B. (17-06-0969, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5090-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
C.B.,
Defendant-Appellant.
_________________________
Submitted January 13, 2020 – Decided May 1, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-06-0969.
Moriarty Law Firm, attorneys for appellant (Charles
Moriarty, of counsel; Timothy C. Moriarty, on the
brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant C.B. was charged in a nine-count indictment after his daughter,
W.B.,1 reported to the Ocean County Prosecutor's Office in November 2016 that
he had sexually assaulted her on numerous occasions between 2005 and 201 2
when she was between the ages of six and twelve. 2 Defendant appeals from his
conviction by jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1) (counts one, four and seven); second-degree sexual assault, N.J.S.A.
2C:14-2(b) (counts two, five and eight); and second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a)(1)(counts three, six and nine). On
appeal, he argues:
[POINT I]
V.H. AND J.M. SHOULD NOT HAVE BEEN
PERMITTED TO TESTIFY BECAUSE THEIR
TESTIMONY DID NOT MEET THE
REQUIREMENTS OF THE FRESH-COMPLAINT
EXCEPTION TO THE HEARSAY RULE.
[POINT II]
DEFENDANT WAS DENIED A FAIR TRIAL
BECAUSE THE TRIAL COURT IMPROPERLY
PERMITTED HEARSAY EVIDENCE BY
NUMEROUS WITNESSES, AND IMPROPERLY
1
We use initials to protect the privacy of W.B. See N.J.S.A. 2A:82-46; R. 1:38-
3(9), (12).
2
W.B.'s date of birth is March 30, 1999.
A-5090-17T4
2
ALLOWED EVIDENCE AND TESTIMONY THAT
WAS MORE PREJUDICIAL THEN PROBATIVE.
A. Testimony by Detective Alexander
Regarding Defendant Purchasing Airline
Tickets to Brazil and Defendant Traveling
to Various States Outside of New Jersey.
B. Court Improperly Permitted the State
to Introduce Recorded Telephone
Conversation Between W.B. and
Defendant over the Defense's Objection to
Same.
[POINT III]
THE PROSECUTOR IMPROPERLY VOUCHED FOR
THE TESTIMONY OF A KEY WITNESS IN THE
CASE DEPRIVING DEFENDANT OF HIS RIGHT
TO A FAIR TRIAL.
[POINT IV]
DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND THE TRIAL COURT'S
DETERMINATIONS AND FINDINGS AS TO THE
APPLICABLE AGGRAVATING AND MITIGATING
FACTORS ARE CLEARLY ERRONEOUS AND NOT
SUPPORTED BY COMPETENT CREDIBLE
EVIDENCE; THEREFORE, DEFENDANT'S
SENTENCE MUST BE VACATED.
A. The Trial Court Engaged in
Impermissible Double-Counting in
Finding Aggravating Factor Two Applied
to Defendant.
A-5090-17T4
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B. The Trial Court Improperly
Evaluated Defendant's Risk to Reoffend
and the Trial Court's Determination that
Aggravating Factor Three Applied is Not
Supported by Competent Credible
Evidence.
C. The Trial Court's Findings with
Respect to Aggravating Factor Nine Are
Not Supported by Competent Credible
Evidence.
D. The Court's Imposition of a Sentence
at the Upper Limits Cannot Stand as the
Court Improperly Determined the
Aggravating Factors Outweighed the
Mitigating Factors.
We affirm but remand for resentencing.
I.
Following the State's in limine motion to admit the testimony of two
witnesses to whom W.B. had disclosed defendant's actions, and defendant's
cross-motions to bar those witnesses' testimony, the trial court heard testimony
at an N.J.R.E. 104 hearing from both witnesses. Defendant argues the court
erred in ruling their testimony was admissible as fresh complaint; both testified
at trial, as did W.B.3
3
Fresh-complaint testimony is admissible only if the victim testifies at trial.
See State v. Hill, 121 N.J. 150, 151 (1990).
A-5090-17T4
4
We review a trial court’s decision to introduce fresh-complaint testimony
at trial for an abuse of discretion. See State v. Bethune, 121 N.J. 137, 145-48
(1990). "Trial judges are entrusted with broad discretion in making evidence
rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003). As
such, "[a] reviewing court should overrule a trial court's evidentiary ruling only
where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295,
357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).
Although an out-of-court statement offered to prove the truth of the matter
asserted therein is inadmissible hearsay, N.J.R.E. 801, fresh-complaint
testimony by the victim of a sexual offense is admissible for a narrow purpose:
"to negate the inference that the victim's initial silence or delay indicates that
the charge is fabricated," State v. R.K., 220 N.J. 444, 455 (2015). "[T]o qualify
as fresh-complaint evidence, the victim's statement must have been made
spontaneously and voluntarily, within a reasonable time after the alleged assault,
[and] to a person the victim would ordinarily turn to for support." Ibid. "A
witness may testify only to the general nature of the complaint, and unnecessary
details of what happened should not be repeated." State v. W.B., 205 N.J. 588,
617 (2011). Because fresh complaint evidence cannot be used to bolster the
victim’s credibility, R.K., 220 N.J. at 456, trial courts "may, but need not,
A-5090-17T4
5
exclude cumulative fresh-complaint testimony that is prejudicial[,]" Hill, 121
N.J. at 170.
W.B. made a non-specific disclosure that defendant "had done things to
her which was implied in a sexual manner . . . [and] that he would hold her down
in his bed," to her lifelong, close friend, V.H., when they were younger than ten
years of age—and while defendant's sexual assaults of W.B. were ongoing.
Defendant does not claim that disclosure did not meet the criteria for admission
as fresh complaint. Defendant argues V.H.'s testimony was unreliable because
her version of events differed significantly from W.B.'s recollection and
included "force, fear and violence" never mentioned by W.B. Defendant further
contends a subsequent conversation between W.B. and V.H. "as [fifteen]-year-
olds," and an inquiry of V.H. by W.B.'s mother, K.B., if W.B. had ever said
anything about defendant, tainted the initial fresh complaint.
These bald assertions do not render V.H.'s testimony inadmissible.
Defendant concedes in his merits brief:
V.H. never revealed what W.B. said to her on the
second occasion other than that "she had told me she
told her boyfriend about [the sexual assaults]." . . . V.H.
never delineated what information she received from
W.B. on that second occasion, what additional details
she gleaned from the second conversation, and how that
information may have caused her to revise her
A-5090-17T4
6
understanding of the sexual abuse W.B. was alleging to
have experienced.
Not only is defendant's argument unsupported by the record, it fails to
consider that fresh-complaint testimony "is not evidence that the sexual offense
actually occurred, or that [a victim] is credible. It merely serves to negate any
inference that because of [a victim's] assumed silence, the offense did not
occur." Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007).
Thus, because fresh-complaint testimony "does not prove the underlying truth
of the sexual offense," ibid., and the account of the disclosure is limited to "the
general nature of the complaint," avoiding "unnecessary details of what
happened," W.B., 205 N.J. at 617, it is of no moment that V.H.'s testimony may
have differed from W.B.'s full disclosure. The State did not introduce, and the
jury did not hear, detailed testimony from V.H., including her statement about
"force, fear and violence." The trial court did not abuse its discretion in
admitting V.H.'s fresh-complaint testimony.
J.M. was W.B.'s boyfriend of approximately four to five months in the
summer of 2016. Defendant also argues the trial court erred in allowing J.M.'s
fresh-complaint testimony that W.B. and he were "talking on the phone one
night and she was very clearly upset"—"crying, very anxious [and] scared"—
causing him to ask "repeatedly," "a few times" "what the problem was" "because
A-5090-17T4
7
[he] could see very clearly that it was not nothing wrong or not something that
should be taken lightly." W.B. finally told him her father had "molested her"
from the time she was six-years-old until she was twelve. 4 J.M testified he did
not ask W.B. if she "was sexually abused by her father." J.M. said he
immediately drove to W.B.'s home and continued the conversation; W.B. told
J.M. what her father made her do "and that this was probably a huge cause of all
of her anxiety."
Defendant contends J.M.'s testimony did not meet the fresh-complaint
criteria for admissibility because he repeatedly questioned W.B. before she
disclosed and that disclosure was made approximately four years after the
defendant's last alleged assault in 2012. We disagree. As the trial court found,
J.M. repeated his questions without knowing "anything about an alleged
complaint or problem that the victim had with . . . defendant." The court
discounted J.M.'s prior statement to a detective that he "pushed [W.B.'s
disclosure] out of her," finding from his testimony "that that was really not the
proper explanation as to what happened," and that J.M. did not interrogate or
force W.B. to disclose her father's abuse. Indeed, J.M.'s repeated questions to
4
J.M. described the molestation in more detail at the N.J.R.E. 104 hearing.
Throughout this decision we have refrained from describing the sordid sexual
acts, only because a vivid account is not required for our determination.
A-5090-17T4
8
his distraught girlfriend were aimed at finding out what was upsetting her.
"[G]eneral, non-coercive questions do not rob a complaint of its admissibility
under the fresh-complaint rule." Bethune, 121 N.J. at 144 (holding questions
such as, "what’s wrong?" and "[d]id he do something to you?" did not constitute
a coercive line of questioning (quoting People v. Evans, 173 Ill. App. 3d 186,
191 (1988))).
The disclosure, some four years after the last alleged act, bears close
scrutiny. Notwithstanding that fresh complaints of sexual assault must be made
within a reasonable time, that requirement "must be 'applied more flexibly in
cases involving children than in [cases] involving adults.'" W.B., 205 N.J. at
618 (alteration in original) (quoting State v. L.P., 352 N.J. Super. 369, 382 (App.
Div. 2002)). In deference to a child's "special vulnerability to being cajoled and
coerced into remaining silent by their abusers, courts allow children additional
time to make a fresh complaint." Bethune, 121 N.J. at 143. Such an
accommodation also recognizes "the reluctance of children to report a sexual
assault and their limited understanding of what was done to them." State v. P.H.,
178 N.J. 378, 393 (2004).
The trial court found W.B.'s disclosure to J.M. was made within a
reasonable time considering the difficulty young victims have in disclosing
A-5090-17T4
9
abuse by someone with whom they have a close relationship. The court
explained the timing of the disclosure
was reasonable because a relationship was developing
between [W.B. and J.M.] for some period of time while
they were dating, and that trust between two people
developed to the point where . . . the statement was
made within a reasonable time of the occurrence
because the relationship became stronger and clearly
there was more trust between the two individuals.
Noting the complexity of such situations, the trial court recognized that the
development of sufficient trust is an "ongoing process," making the time period
reasonable.
We have recognized that a greater
lapse of time between the assault and the complaint
may be permissible if satisfactorily explainable by the
age of the victim and the circumstances surrounding the
making of the complaint. For example, in State v.
Hummel, 132 N.J. Super. 412, 423 [(App. Div.
1975)], a period of three years between assault and
complaint was allowed where the fifteen-year-old
victim had been repeatedly raped over a three-year
period and had just been removed from her abuser,
thereby freeing her from the bonds of a paralyzing fear.
The remoteness of the complaint from the abuse was
found to affect only the probative value, not the
competency, of the evidence.
[State v. Pillar, 359 N.J. Super. 249, 281-82 (App. Div.
2003).]
A-5090-17T4
10
The lapse between a juvenile victim's complaint and the last act must be
adequately explained, W.B., 205 N.J. at 618-619 (recognizing that the two-year
delay was justified because the victim was "scared" and in a state of "open
rebellion" against her mother); longer delays typically require a showing of
threats or coercion, see e.g., Hummel, 132 N.J. Super. at 423 (noting that the
reason for the victim's delay was because her abuser threatened to put her away
in a shelter if she spoke); L.P., 352 N.J. Super. at 384 (finding that the delayed
complaint was justified because the victim "continued living with defendant . .
. and defendant had warned [her] that he would kill her if she told anyone about
the sexual abuse").
Reflecting her "limited understanding" of what was done to her when she
was six years-old, at a time when defendant still lived with her, her mother and
her brother, see P.H., 178 N.J. at 393, W.B. testified she was "unfazed" by the
abuse that occurred while her mother was at work because "[a]t six years[ -]old,
you don't know any better, you're not fully taught what's right or wrong[.]"
During the abuse that occurred during bi-weekly weekend parenting time
at defendant's father's house when W.B. was "around eight to tenish," defendant
first told W.B. not to tell anyone because if she "said anything that he could get
. . . in very serious trouble and [she] wouldn't see him anymore." After W.B.
A-5090-17T4
11
told V.H. about the abuse, and defendant moved to two locations in Woodbridge
Township between 2010 and 2012, when W.B. was between ten or eleven and
thirteen years-old, the assaults continued during bi-weekly parenting time.
From the record, we observe W.B. did not tell anyone about the abuse, including
her mother, from her initial disclosure to V.H. before they were ten years -old
until she told J.M.
Although there is no evidence defendant threatened or forced W.B. to
remain silent, he did play on her emotions for him after defendant moved from
the marital home. W.B. told the jury about her relationship with defendant:
Before everything came out, I was able to have a
relationship with my dad and we would go out to lunch,
we would hang out, we would go jeeping together
which is like mudding in a Jeep, pretty standard stuff,
but I was able to build a relationship with him.
She explained, "I just disassociated what he did from him. Like it was a different
person, like what he did was completely different from who he was. And I just
disassociated that so he was still my dad and was able and easier to have a
relationship with him." She said she loved her father, and since she came
forward:
I don't talk to half my family now. I'm missing a whole
person from my life. I don't have someone to walk me
down the aisle. My kids aren't going to have a grandpa,
and I'm just missing such an important figure from my
A-5090-17T4
12
life. We were supposed to learn how to do things
together. He was supposed to teach me how to fix cars
and help me with my car problems and just be a dad and
I'm missing that now.
Even at age ten, she realized her father would face punishment if she disclosed,
asking V.H. to keep secret their conversation because W.B. "didn't want her dad
to get in trouble." And, J.M. told the jury, she never told anyone besides V.H.
because she "was afraid she would get in trouble and she thought that it might
have been her fault and people would be mad at her."
When she told J.M., she had no apparent confidante. There is no evidence
she told V.H. about the continued abuse after her initial disclosure. She never
sought her mother's help at any time. In fact, she "took a shot" thinking she
"might as well try" to get defendant to stop the assaults, and confronted her
father around her thirteenth birthday. She told him "that what he was doing was
wrong." After "that he basically just did stop."
After she confronted her father, she wanted to see a therapist a year to six
months prior to her mother beginning that process in November 2016, by asking
defendant about health insurance coverage for the sessions. She had not begun
therapy when she told J.M in the summer of 2016. Under those circumstances,
although the four-year period between the last act and W.B.'s disclosure to J.M.
was lengthy, we agree with the trial court that W.B. did not have a trusted person
A-5090-17T4
13
to tell of the longstanding abuse until then. She apprehended the repercussions
to her and defendant that did ensue once disclosure was made to her mother,
albeit by her father's reaction to the request for health insurance coverage for
the therapy sessions. She told the man, to whom she would become affianced,
of the continued abuse only after they had developed a relationship she could
trust; even then, she was distressed when she made that disclosure. The trial
court did not abuse its discretion in finding the disclosure to J.M. was made
within a reasonable time.
We reject defendant's contention that the trial court erred in allowing
fresh-complaint testimony from both V.H. and J.M. V.H.'s testimony involved
the very early assaults by defendant. J.M.'s testimony covered assaults over an
additional two years, well after the disclosure to V.H. that occurred when W.B.
was less than ten years-old. Absent J.M.'s testimony, the jury may have thought
that W.B.'s failure to complain about the assaults that continued after she was
ten years-old were fabrications. It was within the judge's discretion to allow
both witnesses' testimony "to negate the inference that the victim's initial silence
or delay indicates that the charge is fabricated," R.K., 220 N.J. at 455, including
W.B.'s silence about the continued abuse after she told V.H, see Hill, 121 N.J.
at 170 (holding trial courts "may, but need not, exclude cumulative fresh-
A-5090-17T4
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complaint testimony that is prejudicial"); see also State v. Taylor, 226 N.J.
Super. 441, 453 (App. Div. 1988) (holding "[w]ithout evidence of the second
complaint, a jury might have thought that if the child did not recount the events
to her mother at the first opportunity, the events may have been a fabrication of
either the child or her aunt").
II.
Defendant also advances several additional arguments that the trial court
erred in admitting evidence.
A.
Defendant argues the trial court erred by denying his motion in limine to
exclude evidence at trial of a telephone conversation between W.B. and
defendant that was recorded by the Prosecutor's Office and played to the jury
during the State's case-in-chief. The call began with a cordial, innocuous
conversation before W.B. told defendant that her mother informed her that
defendant asked why W.B. was looking for a therapist. Her mother testified that
she asked defendant about health insurance coverage for therapy sessions on the
day prior to the recorded conversation. When defendant replied, "Oh, yeah, to
make sure everything was going okay," the following colloquy ensued:
[W.B.]: Well, I think we both know the reason why I’m asking for
a therapist.
A-5090-17T4
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[DEFENDANT]: (Inaudible.)
[W.B.]: So –
[DEFENDANT]: Okay.
[W.B.]: I mean, you said you wanted to, you know, try and be part
of . . . my life, but I don’t, like, going to a therapist is not to get you
in trouble, its just so I can actually have closure on what happened
because we both know what happened wasn’t okay.
[DEFENDANT]: (Inaudible.)
[W.B.]: So.
[DEFENDANT]: So. You do whatever you have to do to get better,
sweetheart.
[W.B.]: I mean –
[DEFENDANT]: I love you (inaudible).
[W.B.]: Yeah, I love – what? Hello?
[DEFENDANT]: All right. Take care sweetie.
[W.B.]: Wait, why are you – wait. Where are you going?
[DEFENDANT]: No, I just –
[W.B.]: No, but I . . . called you to talk.
[DEFENDANT]: All right. I just –
[W.B.]: What’s wrong? You don’t sound okay.
[DEFENDANT]: I’m okay. It’s okay.
A-5090-17T4
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[W.B.]: I really, I don’t make – I don’t want you to feel like [bad]
about the situation, like –
[DEFENDANT]: No.
[W.B.]: But, I don't know.
[DEFENDANT]: Want you to be happy.
[W.B.]: Is there anything you have to say about it at least?
[DEFENDANT]: No.
[W.B.]: There’s no apology for basically ruining my life, a little bit?
Because we all know, like, that [messed] someone up.
[DEFENDANT]: I don’t – I can’t – I don’t want to talk about this
on the phone.
[W.B.]: But why not?
[DEFENDANT]: I just don’t.
[W.B.]: Well, I can't talk to you in person about it because [we] all
know how it's going to end, and it's not going to be well.
[DEFENDANT]: Have a good Thanksgiving, okay.
[W.B.]: Why are you trying to leave? Like – you don’t, you don’t
even have like a single remorse for what you did? How is that fair
to me? There’s not one apology you could possibly have, because,
you know, this happened for like six years, right? There’s not a
single apology?
[DEFENDANT]: Oh, there’s lots of apologies.
A-5090-17T4
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[W.B.]: Well, you said you wanted to try to and make things better
but you still have not even brought up the biggest issue that there
is.
[DEFENDANT]: No.
[W.B.]: So why don’t we address it?
[DEFENDANT]: I can’t right now, I’m sorry.
[W.B.]: Why not?
[DEFENDANT]: I can't.
[W.B.]: All right. Well, everything has been on your time. So why
can't this be on my time?
[DEFENDANT]: I'll call you back in a little bit.
[W.B.]: No, like, why can't we just talk now? Are you with
someone right now?
[DEFENDANT]: I told you I'm – I'm – I'm –
[W.B.]: You just said you were outside.
[DEFENDANT]: Yeah, but I can't talk right now, I'm sorry.
[W.B.]: Why?
[DEFENDANT]: Can't.
[W.B.]: But I’m ready to talk.
[DEFENDANT]: Sweetie, I love you.
[W.B.]: No, obviously, you don’t, though. There’s no apology or
anything?
A-5090-17T4
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[DEFENDANT]: There’s [an] apology, I’m sorry, I’m sorry, I was
a horrible parent, I was never there.
[W.B.]: That’s no, that’s – you not being there is not what I’m
asking for – he really just hung up on me.
Defendant contends the recording was inadmissible because it is
ambiguous. Trial counsel argued defendant was apologizing for being "a
horrible parent," not about allegations of sexual assault which were never
specified by W.B. during the conversation. As such, the "ambiguous nature of
the conversation . . . invited unconstitutional speculation rendering the call
unduly prejudic[ial]." Defendant also argues that the prosecutor's claim to the
jury during summation that the "true meaning" of defendant's failure to address
W.B.'s allegations and his apology constituted an admission of guilt.
The trial court, after a N.J.R.E. 104 hearing at which the recording was
played, ruled the conversation was relevant and it would be up to the jury to
determine if anything was to be derived from the recording in the context of all
of the evidence adduced at trial, after hearing both parties' views about the
recording's content. Although "relevant evidence may be excluded if its
probative value is substantially outweighed by the risk of . . . [u]ndue
prejudice[,]" N.J.R.E. 403; State v. Covell, 157 N.J. 554, 573 (1999), we review
a trial court's decision on that issue, affording "substantial deference to the
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evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186
N.J. 286, 319 (2006). Thus, our review of evidentiary decisions implicates the
abuse of discretion standard, where a reversal will occur only where the trial
judge's decision was "a clear error of judgment." Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (quoting Koedatich, 112 N.J.
at 313).
Considering the remarks made by W.B. during the conversation, and other
evidence, defendant's statements in the recorded conversation were not so
ambiguous as to require exclusion. W.B. told defendant in the beginning of the
pertinent conversation, "I think we both know the reason why I’m asking for a
therapist." W.B.'s mother testified that on the day prior to the conversation,
when she raised the subject of insurance coverage for therapy to defendant,
defendant "was nervous, he was scared, he was very childlike." When he
informed K.B. "about a notebook that had passwords and bank account
information in it," K.B. asked him why he was advising her of that information.
K.B. said defendant replied "that because as soon as [W.B.] spoke to a therapist
they were going to have to call the cops and he couldn't live in jail."
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W.B. commented that she was not seeing a therapist to "get [defendant] in
trouble," but to "actually have closure on what happened because we both know
what happened wasn’t okay." She continued:
[Y]ou don’t even have like a single remorse for what
you did? How is that fair to me? There’s not one
apology you could possibly have, because, you know,
this happened for like six years, right? There’s not a
single apology?
[(Emphasis added).]
That evidence sufficiently strengthened the probative value of the recording to
justify the trial court's finding that the prejudice caused by any ambiguity did
not outweigh that value. The jury could consider defendant's demeanor and his
responses during the conversation in determining the parties' dueling
interpretations of the issue being discussed. As the trial court instructed the
jury, it had to first determine if the statement was made by defendant and, if
made, whether it was credible. The instruction, which conformed substantially
to the model charge, Model Jury Charges (Criminal), "Statements of Defendant"
(rev. June 14, 2010), placed the conversation's context in the hands of the jury.
In a single sentence, without any explanation, defendant argues the
recording's "admission was improper pursuant to [N.J.R.E.] 803(b)(1) and
[N.J.R.E.] 104." Defendant's contention cannot be considered an
A-5090-17T4
21
argument. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 506
n.2 (App. Div. 2015) (finding that an issue raised in "a single sentence in
[defendant's] brief," was waived because defendant provided no supporting legal
argument). Although the N.J.R.E. 104 hearing at which the recording was
played does not present as a traditional N.J.R.E. 104(c) hearing at which the trial
court must determine if the State proved defendant's statement was voluntary,
see State v. Miller, 76 N.J. 392, 404-05 (1978), defendant does not argue that
the conversation with his daughter was not voluntary. 5 Moreover, after listening
to the recording and arguments of counsel the trial court found "there [was] no
legal reason, no evidentiary reason to keep this statement out at this time." As
such, we find no merit in defendant's syncopated argument.
B.
Defendant further argues the trial court erred in admitting hearsay
testimony elicited from the case detective over his objection. Specifically, in
his merits brief defendant asserts the detective's "testimony regarding defendant
purchasing a one-way ticket to Brazil and travel[ing] out of state . . . constituted
inadmissible hearsay"; should have been excluded as more prejudicial than
5
When the CD of the recording was moved into evidence by the State, defendant
had no objection.
A-5090-17T4
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probative; and, although the State "intimated that the evidence indicated a
consciousness of guilt," the court's denial of the State's request for a flight
charge prejudiced defendant. 6 The detective testified that the day after the
recorded conversation, "defendant purchased and subsequently cancelled airline
travel from Newark Liberty International Airport . . . to Orlando, Florida,
continuing to Sao Paulo, Brazil"; the ticket was one-way. Defendant did not
object to that testimony. As such we will view it under the plain error standard.
"Under that standard, a conviction will be reversed only if the [alleged] error
was 'clearly capable of producing an unjust result[.]'" State v. McGuire, 419
N.J. Super. 88, 106 (App. Div. 2011) (quoting R. 2:10-2). Defendant must
present evidence "sufficient to raise a reasonable doubt as to whether the error
6
In the statement of facts of his merits brief, defendant mentions another
instance during the trial when a hearsay objection was made to the detective's
testimony that defendant's sister "reported the defendant missing or in danger
because [he] failed to show up for work." In the statement of facts, he also
mentions the detective's testimony that "there was [an] indication that
[d]efendant attempted to conceal his whereabouts by using cash and removed
his license plate from his vehicle at various times," and by calling from restricted
phone numbers; there was no objection lodged to that testimony which was
elicited during cross-examination. Several other hearsay objections were lodged
at trial but were not addressed in defendant's merits brief. Defendant did not
advance any argument about any of the foregoing testimony in his merits brief.
As such we will consider them abandoned. See State v. Press, 278 N.J. Super.
589, 596 (App. Div. 1995) (determining that an "issue [that] was not briefed or
argued . . . should not [be] address[ed]"); State v. L.D., 444 N.J. Super. 45, 56
n.7 (App. Div. 2016) ("[A]n issue not briefed is waived.").
A-5090-17T4
23
led the jury to a result it otherwise might not have reached[.]" Id. at 106-07
(alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)). In
other words, he must establish that the error "was clear and obvious and that it
affected [his] substantial rights." Id. at 107.
Defendant did interpose a hearsay objection to the detective's testimony
that defendant travelled to various states. If an objection is made, we review the
trial court's evidentiary holding under the harmless-error standard, see State v.
Reeds, 197 N.J. 280, 297-98 (2009), and will only reverse its decision if the
error "is of such a nature as to have been clearly capable of producing an unjust
result[,]" State v. R.B., 183 N.J. 308, 330 (2005) (quoting R. 2:10-2); see also
State v. Macon, 57 N.J. 325, 337-38 (1971) (noting that "the same ultimate
standard applies whether the error was objected to below or whether the error
was first claimed upon appeal").
The detective told the jury that "[d]uring the course of our investigation,
we learned that . . . defendant was . . . scheduled to spend Thanksgiving[—the
day after the recorded conversation—]at his sister's residence" but did not
attend. At a sidebar conference following defense counsel's hearsay objection
because the information was given to the State by defendant's sister, the assistant
prosecutor tried to justify the testimony, contending it was "derived from
A-5090-17T4
24
numerous sources," not just from what defendant's sister said. The assistant
prosecutor continued:
It's basically based upon a lengthy investigation, it's
based upon numerous different things including
numerous records that we viewed in determining where
the defendant's whereabouts are.
It's relevant because . . . defendant was ultimately
apprehended in Alabama. So during Thanksgiving, the
State was just trying to proffer the fact that he was in
Alabama which is, has a direct correlation to the case,
specifically that's where he was located. So we have to
be able to put that in some type of context, so that was
pretty much what we were eliciting it for. We didn't
elicit any type of hearsay statement. I believe that
counsel is right to the fact that this conversation was
documented in a conversation with [defendant's sister]
but we're not eliciting it as to what [defendant's sister]
said, and furthermore, this was documented in
numerous, numerous records as well independent from
what [defendant's sister] was saying.
The trial court queried if the testimony was admissible "not for the truth
of what someone told an investigator about [where] a person would be, but rather
for the purpose of making the jury aware of what investigation went toward s
finding this information[.]" The assistant prosecutor, unsurprisingly, agreed
with the argument she had not theretofore raised. Yet, the assistant prosecutor
admitted that she was seeking to elicit that defendant travelled to Alabama after
the recorded conversation, "which is tying into where he [was] ultimately found"
A-5090-17T4
25
and arrested. The trial court overruled defendant's objection, finding the
testimony relevant, not introduced to prove the truthfulness of the statement, and
"properly admissible as an exception[.]"
The detective then testified defendant went to Alabama, where his cousin
was located, during the Thanksgiving holiday, and returned to New Jersey,
"[a]ccording to credit[-]card records," on December 5, 2016; defense counsel
again objected on hearsay grounds. The trial court allowed the testimony, asking
the assistant prosecutor to "lay a little more foundation" about the credit cards.
Without complying with the judge's instruction, the assistant prosecutor asked
the detective if he knew when defendant returned to New Jersey. The detective
replied defendant "made contact with the New Jersey State Police" on December
10, 2016.
Later, when the detective testified he had no further contact with
defendant in New Jersey after December 23, 2016, the assistant prosecutor
asked, "where did [the detective] believe . . . the defendant went" after that
date?" The detective answered, "based on records, it appeared as if the
defendant was in multiple states[.]" Defense counsel objected on hearsay
grounds. At sidebar, the assistant prosecutor asserted:
Judge, the State would just place on the record that it's
not hearsay, he is basing this on his investigation. The
A-5090-17T4
26
detective gets on the stand, he's allowed to testify as to
what happened in the investigation. There were
numerous records in this case which were turned over
to defense counsel. They were turned over as certified
business record documents. He's certainly allowed to
testify as to his conclusions about the investigation.
So at this point in time, it is the State's position
that this type of testimony is admissible. I mean there
was numerous, numerous search warrants done in terms
of finding out the defendant's whereabouts as to where
he went and where he didn't go. Now, the State would
understand if we tried to elicit a particular hearsay
statement that, you know, Barbara told me he was here,
but that's not what we're doing. We're basically giving
a summary based upon the voluminous records which
were certified and we're not offering any type of
statement at this time.
After the trial court confirmed that defense counsel received from the
State records of credit-card usage, airline ticket purchases, and attendance
records from defendant's employer, defense counsel explained that he objected
because the detective's "opinion" was derived from documents which were not
established as hearsay exceptions; that is, the State did not lay a foundation
establishing that they were business records. The trial court ruled:
If a detective goes out and investigates a case and
obtain[s] records, for instance, from a business, from a
place where a person works, that is part of the
investigation, in this [c]ourt's opinion, and he's allowed
to testify to that. [Defense counsel is] allowed to cross-
examine if [he] want[s] to use the records or anything
like that.
A-5090-17T4
27
The court also determined the State was not seeking to introduce the documents;
the detective was "testifying from his investigative reports"; and that the records
from which the detective was opining as to defendant's travels were not hearsay,
but were "records from a business."
The State also introduced at trial text messages between defendant and
W.B. that were taken from W.B.’s phone. Defense counsel objected that these
messages constituted inadmissible hearsay. The trial court overruled the
objection, stating "they are not hearsay at this time, not being offered for the
truth but that are part of an investigation in this matter."
Just after the recorded conversation, W.B. texted defendant and asked,
"[w]hy’d you hang up?" and "[w]hen are you going to, gonna call back, call me
back, I’m sorry." Defendant replied, "Sorry, had to go. Have an errand. Call
you on Friday." Additional text messages, collected from W.B’s phone during
November 22, 2016 to January 22, 2017, were also introduced. One of the text
messages from W.B.’s phone, sent on December 18, 2016, stated , "I’m not
surprised you ran again, but you are making my life hell right now and you’re
pissing me off. Take responsibility for your actions"; to which defendant
responded "I’m sorry I’m making your life hell." Defendant now argues "the
admission of the text messages, specifically, the one in which W.B. asks
A-5090-17T4
28
defendant, 'why he is running[,]' should never have been admitted, and if
admitted, required the [c]ourt to issue a limiting instruction."
The specific text message was, like the recorded conversation, a hearsay
exception if it was defendant's statement. N.J.R.E. 803(b)(1). We note the trial
court did not conduct a N.J.R.E. 104(c) hearing to determine if the statement
was voluntary or to determine the prejudicial impact of, not only defendant's
statement, but also that of the prompting text from W.B. Defendant, however,
objected only on hearsay grounds. He does not contend that defendant's text to
his daughter was not voluntary. He does not contend, as he did with the recorded
conversation, that the statement was more prejudicial than probative. We also
note the trial court, as it did with defendant's statements in the recorded
conversation, instructed the jury it had to first determine if the statement was
made by defendant and, if made, whether it was credible. Again, the instruction
conformed substantially to the model charge, see Model Jury Charges
(Criminal), "Statements of Defendant," and placed the conversation's context in
the hands of the jury. But, for reasons which we will discuss at length, W.B.'s
comment that defendant was running again was, on the record before us,
inadmissible.
A-5090-17T4
29
The trial court erred in determining the detective could testify from
records, even if defense counsel received them in discovery. The assistant
prosecutor did not establish that any of the records were admissible as hearsay
exceptions; she simply stated they were. A proper foundation must always be
laid before business records can be admitted into evidence. See State v.
Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975). "The requirement that a
foundation be laid establishing the criteria for admissibility [of the business
records] may be met by the kind of proof that would satisfy a trial judge in a
hearing under [N.J.R.E.] 104(a), including proof presented in affidavit form[.]"
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme
Court Committee Comment on N.J.R.E. 803(c)(6) (2019). To achieve that end,
a trial judge should normally examine the records during a N.J.R.E. 104 hearing
to determine the manner of their preparation and ensure that all requirements of
N.J.R.E. 803(c)(6) are satisfied before allowing the documents to be admitted
into evidence at trial. 7 N.J. Div. Youth & Family Servs. v. E.D., 233 N.J. Super.
7
Under the "Records of Regularly Conducted Activity" exception to the hearsay
rule ("business records exception"), documents or records may be exempt from the
hearsay rule if they meet three criteria:
First, the writing must be made in the regular course of
business. Second, it must be prepared within a short
A-5090-17T4
30
401, 413 (App. Div. 1989); see also Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, cmt. 1 on N.J.R.E. 803(c)(6) (2019). Alternatively, a
custodian of records or other qualified witness can testify that the proffered
records meet the required N.J.R.E. 803(c)(6) criteria. See Konop v. Rosen, 425
N.J. Super. 391, 402-04 (App. Div. 2012); Hahnemann Univ. Hosp. v. Dudnick,
292 N.J. Super. 11, 17-18 (App. Div. 1996) (noting that a witness must be
qualified before laying the necessary foundation for computer records to be
admitted into evidence at trial). For example, we have determined
[a] witness is competent to lay the foundation for
systematically prepared computer records if the witness
(1) can demonstrate that the computer record is what
the proponent claims and (2) is sufficiently familiar
with the record system used and (3) can establish that it
was the regular practice of that business to make the
record. If a party offers a computer printout into
evidence after satisfying the foregoing requirements,
the record is admissible "unless the sources of
information or the method, purpose or circumstances of
preparation indicate that it is not trustworthy."
[Hahnemann, 292 N.J. Super. at 18 (citation omitted)
(quoting N.J.R.E. 803(c)(6)).]
time of the act, condition or event being described.
Finally, the source of the information and the method
and circumstances of the preparation of the writing
must justify allowing it into evidence.
[State v. Matulewicz, 101 N.J. 27, 29 (1985).]
A-5090-17T4
31
See also Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007) ("All
that is needed to lay the foundation for the admission of systematically prepared
. . . records otherwise qualified as business records is if 'the witness (1) can
demonstrate that the . . . record is what the proponent claims and (2) is
sufficiently familiar with the record system used and (3) can establish that it was
the regular practice of that business to make the record.'" (quoting Hahnemann,
292 N.J. Super. at 18))). Finally, an affidavit may be sufficient to lay a proper
foundation for the records under certain circumstances. Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee
Comment on N.J.R.E. 803(c)(6) (2019).
The detective was not able to introduce the hearsay statements from the
records or any other source unless the trustworthiness of the source was
established. The detective was not a permissible conduit for the introduction of
inadmissible hearsay; "case detective" is not a hearsay exception. And, we
disapprove of the trial court's admission of hearsay evidence as explaining the
State's course of investigation.
The trial court's determination that the testimony was not hearsay because
it was not offered to prove the truth of the matter was misguided. In her
summation, the assistant prosecutor linked the detective's testimony about
A-5090-17T4
32
defendant's travel and the text messages to defendant's knowledge of the subject
of his recorded conversation with W.B., stating:
Text messages, which were marked S-2, these are
crucial because they show you exactly what was
happening while this was going on. If you look to the
bottom of these, on the date of November 22[], you can
see specifically the defendant and how this is imploding
for him because what is he doing? He’s trying to
contact [W.B.]. He says, hey, did you get rid of Snap
Chat? I don’t see you as my friend anymore, [W.B.]
Then he says, I can’t add you either.
[K.B.] testified that on [November 22], . . .
defendant was trying to get in touch with them. It’s
more telling is that you can see during the course of
these text messages when the consensual is over, and
[W.B.] asked her father, why did you hang up? When
are you going to call me back? You know what his
response to her is? Sorry, had to go, have an errand,
call you on Friday. That’s what he said to her. At any
time during this consensual, at any time in these text
messages, at any time does the defendant ever once say
to [W.B.], [W.B.], what are you talking about? I didn’t
do this, what are you crazy? Are you making this up?
That would be a normal reaction, but that’s not what the
defendant does.
The day after he, [W.B.] goes to the police on
November 23[], 2016, the defendant books a one-way
flight to Brazil and then cancelled it. This evidence is
not being offered to say to you that the defendant
somehow fled the country and all these other things.
What it shows to you is that this was his immediate
reaction. It shows you that he knew exactly what was
going on in that consensual because this was his first
reaction.
A-5090-17T4
33
[(Emphasis added).]
The assistant prosecutor continued this tack, telling the jury defendant did
not go to his sister's house for Thanksgiving, and, instead, went to Alabama to
"distanc[e] himself" from W.B. "because it's not a secret what happened between
the two of them." She also quoted W.B.'s text and defendant's reply, and told
the jury:
Why would he be making her life hell at that
point, he's just a bad parent; right? Of course not. And
he was making her life hell. He sexually abused her for
years and now he's told her that her mother knew about
it. Why is [W.B.] saying to him what are you running?
Because during this whole course of time, . . . defendant
is not in New Jersey the whole time. He's in New
Jersey, then he's going out of state. His own sister
reported him missing for not showing up to work
because he's getting himself away from the situation.
On February 14[], . . . defendant contacts [K.B.]
from a restricted phone number, and in this
conversation he tells her, oh, you knew. Doesn't tell
her, hey, I didn't do this. He takes the blame and now
tries to place it on her. But if he didn’t do it, wouldn't
the normal reaction be what is going on, why is she
saying this, what is happening. That's what you would
say if you didn't do it.
Ultimately . . . defendant is placed under arrest in
Alabama at his cousin['s] . . . house. Her testimony is
that after December 23[] the police didn't have any
more contact with . . . defendant in New Jersey. We
know throughout the course of this, he's basically
A-5090-17T4
34
traveling to different states and at times appearing at
this cousin's house in Alabama. We know that he is
evasive from restricted numbers, and we talked about
this before because he's trying to distance himself from
[W.B.]. He's also attempting to relocate.
The detective's hearsay testimony about defendant's travel outside New
Jersey was used to prove the truth of the matter. Although not couched in terms
of flight, the hearsay testimony about defendant's travel was used by the State
as evidence of defendant's consciousness of guilt and his knowledge that W.B.
was speaking about his sexual crimes during their recorded conversation; it was
his "immediate response." The hearsay testimony was offered to prove the facts
upon which that State-drawn inference was based.
We further observe that even if the out-of-state travel evidence was not
offered for its truth—which we do not believe to be the case—the trial court did
not instruct the jury about its limited purpose. That is not to say we agree with
defendant that the trial court erred by failing to include a flight charge; defendant
objected to that charge, and under the invited error doctrine
a "defendant cannot beseech and request the trial court
to take a certain course of action, and upon adoption by
the court, take his chance on the outcome of the trial,
and if unfavorable, then condemn the very procedure he
sought and urged, claiming it to be error and
prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955).
Thus, when a defendant asks the court to take his
proffered approach and the court does so, [the Court
A-5090-17T4
35
has] held that relief will not be forthcoming on a claim
of error by that defendant. On another occasion, [the
Court] characterized invited error as error that defense
counsel has "induced." State v. Corsaro, 107 N.J. 339,
346 (1987).
[State v. Jenkins, 178 N.J. 347, 358 (2004).]
But the trial court should have instructed the jury if the evidence was admitted
for a purpose other than its plain truth.
We also discern that W.B.'s statement that she was "not surprised
[defendant] ran again," was not analyzed for admissibility. In light of our
determination that the detective's testimony about defendant's travel was
inadmissible as presented, W.B.'s statement was unsupported by other
competent evidence. As used by the assistant prosecutor in her summation, it
was used for the truth of the statement. During a N.J.R.E. 104(c) hearing—
which was not conducted as to the text messages—the trial court, in addition to
determining if defendant's statements were admissible, should have determined
if there was a basis for admission of W.B.'s statements, especially the portion
which we highlighted. We are dubious that defendant's reply that he was sorry
for making W.B.'s "life hell" necessitated the inclusion of her "surprised you
ran" statement. Under N.J.R.E. 106, "[w]hen a writing or recorded statement or
part thereof is introduced by a party, an adverse party may require the
A-5090-17T4
36
introduction at that time of any other part or any other writing or recorded
statement which in fairness ought to be considered contemporaneously." The
doctrine of completeness "allows the reading of a second writing or statement
where 'it is necessary to (1) explain the admitted portion, (2) place the admitted
portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and
impartial understanding.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App.
Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992)).
The trial court abused its discretion in admitting the hearsay evidence.
That evidence supported the State's position that defendant knew what W.B. was
discussing during the recorded conversation. That drawn inference was
strengthened by the admission of the hearsay testimony about defendant's travel.
Further, the State highlighted the hearsay testimony about defendant's purchase
of a one-way ticket to Brazil after the recorded conversation.
Of course, we review the admission of the travel-related evidence, to
which defendant objected under the harmful error standard whereby a new trial
must be granted if the erroneous admission raises a "reasonable doubt as to
whether the error denied a fair trial and a fair decision on the merits[.]" Macon,
57 N.J. at 338. We review the admission of the detective's testimony about the
ticket to Brazil for plain error. "Under that standard, we disregard an error
A-5090-17T4
37
unless it is 'clearly capable of producing an unjust result.'" State v. Daniels, 182
N.J. 80, 95 (2004) (quoting R. 2:10-2). "In other words, the error must be
'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it
otherwise might not have reached.'" Ibid. (alteration in original) (quoting
Macon, 57 N.J. at 336).
Through that bifocal lens we see that the errors do not warrant a new trial.
There was strong evidence of defendant's guilt other than the admitted hearsay.
His reaction to K.B.'s request for health insurance information for their
daughter's therapy was telling. K.B. testified defendant was nervous, scared,
and very childlike. He informed K.B. about passwords and bank account
information, "because as soon as [W.B.] spoke to a therapist they were going to
have to call the cops and he couldn't live in jail."
The jury also heard defendant's reaction to W.B.'s accusatory inquiries
during the recorded conversation in which she referenced "what [he] did" for
six-years and her need for therapy "not to get [him] in trouble," but to "actually
have closure on what happened because [they] both know what happened wasn’t
okay." Those admissible references were sufficient evidence for the jury to find
that defendant knew W.B. was talking about defendant's sexual assaults. The
jury also considered, for its limited purpose, the fresh-complaint evidence. And,
A-5090-17T4
38
W.B.'s detailed testimony about the sordid acts defendant compelled her to
perform was powerful evidence.
The errors were also buffered during the trial. The assistant prosecutor
explicitly told the jury that the State was limiting evidence that defendant
purchased the one-way ticket to Brazil to show his reaction to his recorded
conversation with W.B., not that he fled. Although the trial court failed to
conduct a N.J.R.E. 104(c) hearing regarding the text messages between
defendant and W.B., there is not a scintilla of evidence that defendant's texts
were not voluntary. Furthermore, the trial court included the text messages in
its final instruction to the jury regarding defendant's statements.
We also observe that defense counsel ably cross-examined the detective
to ameliorate the impact of the hearsay evidence. Counsel elicited that: the
detective could not say if the days defendant was absent from work were
vacation days; defendant was staying at his cousin's residence in Alabama, and
the detective did not know if defendant was on vacation; the credit cards and
debit card defendant used as he travelled were in his name, and he did not use a
false credit card; the detective did not know if defendant ever attempted to hide
his identity as he travelled; and during his travel, an arrest warrant had not been
issued for defendant.
A-5090-17T4
39
We countenance neither prosecutorial shortcuts in presenting evidence nor
judicial approval of that practice which sullied this trial. "'[A] defendant is
entitled to a fair trial but not a perfect one,' for there are no perfect trials." State
v. Biddle, 150 N.J. Super. 180, 183 (App. Div. 1977) (alteration in original)
(quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)). We are
convinced defendant received just that, notwithstanding these errors.
III.
Reviewing defendant's argument that the assistant prosecutor improperly
vouched for W.B.'s credibility during summation for plain error because no
objection was made, Daniels, 182 N.J. at 95 ("Under that standard, [this court]
disregard[s] an error unless it is 'clearly capable of producing an unjust result.'"
(quoting R. 2:10-2)), we determine it to be without sufficient merit to warrant
discussion, R. 2:11-3(e)(2). We add only that the assistant prosecutor responded
to defendant's closing argument, during which he repeatedly asserted W.B.
fabricated the allegations, by rhetorically querying what would be her
motivation for so doing. The assistant prosecutor did not vouch for W.B. She
properly pointed to record evidence and inferences related thereto. See State v.
Frost, 158 N.J. 76, 82 (1999). It is well-settled that the State "may argue that a
witness is credible, so long as the prosecutor does not personally vouch for the
A-5090-17T4
40
witness or refer to matters outside the record as support for the witness’s
credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004). While
prosecutors are typically barred from arguing that a witness had no motive to
lie, see R.B., 183 N.J. at 331-32, the assistant prosecutor’s remarks were an
appropriate counter to the attacks on W.B.’s credibility made during defendant’s
summation, a practice we have held as permissible, See e.g., State v. Murray,
338 N.J. Super. 80, 88 (App. Div. 2001) (finding that a "prosecutor's statement
to the jury that [the witness] had no motive to lie was a carefully measured and
appropriate response to defendant's attack on [the witness’s] credibility").
IV.
Defendant was sentenced to an aggregate nineteen-year prison term
subject to an eighty five percent parole disqualifier pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.8 The trial court found aggravating
factors two, three, and nine, N.J.S.A. 2C:44-1(a)(2), (3) and (9), assigning
"maximum weight" to factors two, "[t]he gravity and seriousness of harm
inflicted on the victim," N.J.S.A. 2C:44-1(a)(2); and nine, the need for
8
The aggregate sentence was the term imposed on count one. The trial court
imposed concurrent sentences of: five years on count three; ten years subject to
NERA on count four; five years on count six; ten years subject to NERA on
count seven; and five years on count nine. The court merged: count two into
count one; count five into count four; and count eight into count seven.
A-5090-17T4
41
deterrence, N.J.S.A. 2C:44-1(a)(9); and "significant weight" to factor three,
"[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44 -
1(a)(3). He concluded the aggravating factors outweighed mitigating factor
seven, "defendant has no history of prior delinquency or criminal activity[,]"
N.J.S.A. 2C:44-1(b)(7), to which he assigned "appropriate significant weight[.]"
We are largely unpersuaded by defendant's arguments that the trial court
"failed to articulate and evaluate" the evidence in finding and weighing
aggravating factors two, three, and nine, N.J.S.A. 2C:44-1(a)(2), (3) and (9), and
engaged in impermissible double-counting.
Our review of a sentence is narrow. State v. Miller, 205 N.J. 109, 127
(2011). Our duty is to assure that the aggravating and mitigating factors found
by the judge are supported by "competent credible evidence in the record." Ibid.
(quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court,
we must (1) "require that an exercise of discretion be based upon findings of
fact that are grounded in competent, reasonably credible evidence"; (2) "require
that the factfinder apply correct legal principles in exercising its discretion"; and
(3) modify sentences only "when the application of the facts to the law is such
a clear error of judgment that it shocks the judicial conscience." State v. Roth,
95 N.J. 334, 363-64 (1984). Applying a deferential standard of review to the
A-5090-17T4
42
judge's sentencing determination, we find no error in the judge's identification
and balance of the "aggravating and mitigating factors that are supported by
competent credible evidence in the record." State v. Grate, 220 N.J. 317, 337
(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).
The trial court found: aggravating factor two applicable "because the
victim of the offense was particularly vulnerable or incapable of resistance
because of the extreme youth that we are dealing with in this case"; aggravating
factor three because of the continuous nature of defendant's assaults; and
aggravating factor nine.
Rule 3:21-4(g) requires the trial court to point to specific facts supporting
its determination that aggravating or mitigating factors exist. The "explanation
is important for meaningful appellate review of any criminal sentence
challenged for excessiveness" because it allows this court to "assess the
aggravating and mitigating factors to determine whether they 'were based upon
competent credible evidence in the record.'" Bieniek, 200 N.J. at 608 (quoting
Roth, 95 N.J. at 364). A sentence will not be remanded, however, simply
because the sentencing court’s statement of reasons for finding the aggravating
or mitigating factors could have been clearer. See id. at 609. Rather, the
sentence will still be upheld so long as it is "possible in the context of [the]
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record to extrapolate without great difficulty the [sentencing] court's reasoning."
State v. Pillot, 115 N.J. 558, 566 (1989). This occurs "when the record is clear
enough to avoid doubt as to the facts and principles the court considered and
how it meant to apply them." Miller, 205 N.J. at 130.
Although the trial court's reasons for finding aggravating factor two were
brief, it is clear from the record that the court—which presided over the trial—
was aware of and considered that the victim was six years-old when the assaults
commenced, and that defendant, as her father, was in a position of authority
which he freely exercised during overnight parenting time. We observe the
victim’s mother reminded the court of this fact at sentencing. The assistant
prosecutor highlighted that point stating: "Your Honor is well aware in this case
that what was happening to this little girl began happening when she was
approximately six years[-]old, and the defendant in this case utilized the
relationship with his own daughter to continually engage in this type of
conduct." Thus, the trial court focused "particular attention to any factors that
rendered the victim vulnerable or incapable of resistance at the time of the
crime," Lawless, 214 N.J. at 611, "engag[ing] in a pragmatic assessment of the
totality of harm inflicted by the offender on the victim," State v. Kromphold,
162 N.J. 345, 358 (2000), and giving weight to "the victim's particular
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vulnerability to the perpetrator[,]" State v. A.T.C., 454 N.J. Super. 235, 256
(App. Div. 2018), rev’d on other grounds, 239 N.J. 450 (2019).
We also disagree with defendant's argument that the trial court engaged in
impermissible double-counting, which occurs when the "established elements of
a crime for which a defendant is being sentenced . . . [are] considered as
aggravating circumstances in determining that sentence," Kromphold, 162 N.J.
at 354, with regard to aggravating factor two. Both sexual crimes required only
that the victim be under age thirteen, see N.J.S.A. 2C:14-2(a)(1); N.J.S.A.
2C:14-2(b); the endangering charge required the victim to be under age eighteen,
N.J.S.A. 2C:24-4(b)(1). A finding of aggravating factor two can be based on
the victim's "extreme youth," N.J.S.A. 2C:44-1(a)(2). The trial court's finding
based on assaults that began when W.B. was six years-old was not double-
counting because it "consider[ed] facts showing defendant did more than the
minimum the State is required to prove to establish the elements of an offense."
A.T.C., 454 N.J. Super. 254-55; see also Taylor, 226 N.J. Super. at 453.
Defendant's paternal relationship could also be considered in finding
aggravating factor two as to the sexual offenses because it is not an element of
those crimes.
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Defendant's argument that the trial court improperly determined
aggravating factor three applied is also unpersuasive. Defendant buttresses his
argument with the Static-99R actuarial risk scores set forth in the Adult
Diagnostic and Treatment Center report (Avenel report) prepared in connection
with his eligibility for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-
1 to -7. According to the Avenel report, defendant's score on the Static-99, a
recognized "actuarial test used to estimate the probability of sexually violent
recidivism[,]" In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014),
fell "within the 'Below Average Risk' category for being charged with or
convicted of a new sexual[]offense after five years in the community."
N.J.S.A. 2C:44-1(a)(3) provides that a trial court must consider "[t]he risk
that the defendant will commit another offense" when making its sentencing
determination. "A court's findings assessing . . . the predictive assessment of
chances of recidivism . . . involve determinations that go beyond the simple
finding of a criminal history and include an evaluation and judgment about the
individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153
(2006). Although a trial court is obliged to consider all factors when
determining whether a defendant runs a risk of reoffending, it is not required to
give one such factor controlling weight over the others. See id. at 153-54.
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The trial court discounted the Static-99 in rejecting mitigating factor nine,
N.J.S.A. 2C:44-1(b)(9):
I do consider the Avenel report which in all of its
reports now gives a -- kind of a test that they apply. It’s
an overall test. They do put the caveat in that it doesn’t
specifically mean that this defendant that’s facing
sentenc[ing] will in any way fit within those boundaries
of those test results.
Instead, the trial court determined that defendant ran a high risk of reoffending
due to the continuous nature of the sexual assaults in this case.
The trial court did not abuse its broad discretion by rejecting the Avenel
Report. The court noted Static-99's limitations—"the caveat"—set forth in the
Avenel report: it "is an actuarial tool with moderate accuracy"; the "rate,
confidence interval and nominal category apply to the group and not to
[defendant]"; "[t]he degree to which the routine sample is congruent with
characteristics of New Jersey offenders is unclear"; and "[i]t is important to note
that the Static-99R risk for recidivism . . . may be higher or lower than that
indicated by the Static-99 based on factors not included in this risk tool." The
trial court's reliance on the nature and extent of the trial evidence—what the
Avenel report termed defendant's "repetitive" criminal sexual behavior over six
years—amply supported its aggravating factor three finding. See Thomas, 188
N.J. at 153 (noting that a factor three assessment does not rise and fall on one
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factor, but rather, "include[s] an evaluation and judgment about the individual
in light of his or her history"). The trial court's individualized assessment of
defendant's risk to commit another offense will not be disturbed.
Defendant contends that "the [trial court’s] reasons for applying
aggravating factor nine [were] insufficiently explained and . . . not supported by
the record." Because, in finding aggravating factor nine, the trial court simply
stated there was a "need to deter this defendant specifically and others from
violating the law" we are constrained to remand this matter because the court
did not provide the required factual explanation for its finding as mandated by
Rule 3:21-4(g).
A factor nine determination requires not only a "'qualitative assessment'
of the risk of recidivism, but 'also involve[s] determinations that go beyond the
simple finding of a criminal history and include an evaluation and judgment
about the individual in light of his or her history.'" State v. Fuentes, 217 N.J.
57, 78 (2014) (alteration in original) (quoting Thomas, 188 N.J. at 153). The
trial court was obligated to point to specific facts supporting its conclusion that
there was a need to deter both defendant and the general public from engaging
in future criminal behavior. See id. at 78-79.
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We do not imply that reasons for general and specific deterrence of a
father's sexual abuse of his child over six years do not exist. We remand only
for the court to set forth its reasons. During resentencing the court must also
explain its reasons for the weight it assigns to each aggravating and mitigating
factor. See State v. Case, 220 N.J. 49, 68 (2014) (vacating and remanding a
sentence because the trial court "did not adequately explain its decision to give
[an aggravating] factor 'particular emphasis'"); Fuentes, 217 N.J. at 81 (vacating
defendant's sentence in part because the trial court needed to "explain in greater
detail its assessment of the weight assigned to each aggravating and mitigating
factor, and its balancing of those statutory factors as they apply to defendant").
In light of our remand, we need not address defendant's contention that
the trial court improperly determined that the aggravating factors outweighed
the mitigating factors. We trust the trial court will fully assess and wei gh the
applicable factors. We leave the ultimate sentence imposed to the trial court;
we do not suggest the sentence imposed shocked the judicial conscience.
Affirmed; remanded for resentencing in conformance with this decision.
We do not retain jurisdiction.
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